01 August 2013

On the Difficulties Faced by Judges

Another one from the old TFT Miscellany-at-Law days. 

Readers will no doubt agree that judges have difficult jobs.  When they are not busy dealing with phone calls from frantic Law Ministers, they are elbow deep in listening to arguments or writing judgments.  It will also be self evident that each case, however different from another, must present before the judge the same dilemma: Whether to exercise their judicial discretion and grant justice, or to remain in harmony with the precedents set out in previously decided cases.  Both choices are fraught with difficulty.

Justice Nasim Hasan Shah, always mindful of the problems faced by the Bench, once invoked the aid of literature to persuade them of the need to look beyond the narrow scope of precedent to do justice.  Quoting from Shakespeare’s ‘The Merchant of Venice” our former Chief Justice relied on the earnest plea of Bassanio (Act IV, Scene I):

“And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong.” 

But, however eloquent such a plea may sound, it is not without rebut.  In the case of Syndall v. Castings Ltd. ([1967] I QB 302), it fell to be decided whether or not a man’s illegitimate son was his “descendant” for the purposes of a certain group insurance scheme.  Despite the decisions reached on this point in previous cases, the great Lord Denning M.R held that the child was entitled to the benefits of the scheme.  However, his reasoning did not persuade the other two judges – Lord Diplock and Lord Russell – sitting on the Bench at the Court of Appeal.  Lord Russell ended his judgement with the words: “I may perhaps be forgiven for saying that it appears to me that Lord Denning M.R. has acceded to the appeal of Bassanio in the Merchant of Venice.”  He then quoted the lines above.  “But,” as there is more in Act IV, Scene I than Bassanio’s lone plea, he added: “Portia retorted:

‘It must not be; there is no power in Venice
Can alter a decree established:
‘Twill be recorded for a precedent,
And many an error, by the same example,
Will rush into the State: It cannot be.’

I am a Portia man.”  It seems Justice Shah either sided purely with Bassanio’s camp, or had not read the scene completely.

Poetry, too, has been invoked to unchain the Bench from the shackles of blind adherence to stare decisis (previous decisions).  For example, in Van Kleek v. Ramer (156 Pac. 1108), Scott J. stated: “I may be permitted to suggest, for the consideration of courts and judges who feel impelled to sacrifice their sense of reason and justice upon the Golden Calf of precedent, the quaint philosophy of Sam Walter Foss, in the following lines:

‘One day through the primeval wood
A calf walked home, as good calves should;
But left a trail all bent askew,
A crooked trail, as all calves do.

Since then three hundred years have fled,
And, I infer, the calf is dead.
But still he left behind this trail,
And thereby hangs my moral tale.

The trail was taken up next day
By a lone dog that passed that way;
And then a wise bell weather sheep
Persued the trail o’er vale and steep,

And drew the flock behind him, too,
As good bell-weathers always do,
So from that day, o’er hill and glade,
Through those woods a path was made,

And many men wound in and out,
And bent and turned and dodges about,
And uttered words of righteous wrath,
Because ’twas such a crooked path;

But still they followed – do not laugh –
The first migrations of that calf,
And through this winding woodway stalked
Because he wabbled when he walked.

The forest path became a lane,
That bent and turned and turned again;
This crooked lane became a road,
Where many a poor horse, with his load,

Toiled on, beneath the burning sun,
And traveled some three miles in one.
And thus a century and a half
They trod the footsteps of that calf.

The years passed on with swiftness fleet,
The road became a village street,
And this, before men were aware,
A city’s crowded thoroughfare.

And soon the central street was this
Of a crowded metropolis,
And men two centuries and a half
Trod the footsteps of that calf.

Each day a hundred thousand rout
Followed the zigzag calf about;
And o’er his crooked journey went
The traffic of a continent.

A hundred thousand men were
By one calf near three centuries dead,
They followed still his crooked way,
And lost one hundred years a day;

For thus such reverence is lent
To well-established precedent.
A moral lesson this might teach,
Were I ordained and called to preach.

For men are prone to go it blind
Along the calf paths of the mind,
And toil away from sun to sun
To do what other men have done.

They follow in the beaten track,
And out and in, and forth and back,
And still their devious course pursue
To keep the paths that others do.

But how the wise old wood-gods laugh,
Who saw the first primeval calf!
Ah! Many things this tale might teach;
But I am not ordained to preach.’”

But this calf lyrical should not cloud our judgment.  Discretion, the opposite of following precedent, is sometimes a poor substitute for principle, however great the judge.  “The Discretion of a judge is the Law of Tyrants; it is always unknown; it is different in different Men; it is casual and depends Constitution, Temper, and Passion.  In the best it is often times Caprice, in the worst it is every Vice, Folly, and Passion to which human Nature is liable.”(as cited by Perrin J. in Conway and Lynch v. R. (1845) 7 Ir.L.R 149).  Such a warning is to be taken seriously.

Where, then, are our judges left?  Between the rock of precedent and the hard place of discretion?  The difficult quest for justice may be summed up by the words attributed to Bowen L.J., when, in determining a case, he remarked:  “When I hear of ‘equity’ in a case like this, I am reminded of a blind man – in a dark room – looking for a black hat – which isn’t there!”  Perhaps a solution is to be found in the ingenuity of the Bench itself; in a dose of common sense.

In 1893 it fell to be decided whether a launch in an artificial lake half a mile long was a “ship” within the English Merchant Shipping Act, 1854.  Lord Coleridge C.J. addressed the point with great clarity: “The Attorney-General has asked where we are to draw the line.  The answer is that is not necessary to draw the line at any precise point.  It is enough for us to say that the present case is on the right side of any reasonable line that could be drawn” (Mayor &c. of Southport v. Morriss [1893] I QB 359).  How true!

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