Our Common Law Heritage - Address to the 2004 Joint Study Institute of Law Librarians
OUR COMMON LAW HERITAGE
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
THE 2004 JOINT STUDY INSTITUTE OF LAW LIBRARIANS
SYDNEY, 21 FEBRUARY 2004
I have been asked by the organisers of this event to provide an introduction to the common law heritage of the Australian legal system particularly for the international participants. Much of which I will say will be well known to the Australian participants and I apologise in advance for that.
Last year we celebrated the centenary of the High Court of Australia. That Court is now well known throughout the common law world as a final court of appeal for the quality of its judgments, which are frequently cited in a variety of jurisdictions. The centenary provided an occasion for recognising the longevity of our institutions, for acknowledging the origins of Australian jurisprudence in the common law of England and for recognising the emergence of a distinct Australian common law over recent decades. Nevertheless, the development of our common law continues to be influenced and informed by the jurisprudence of other common law countries and, at least at the level of the High Court, increasingly by international jurisprudence.
The unity of the Australian common law is determined by a particular feature of our Federal Constitution which differs in this respect from that of the United States. The High Court unlike the Supreme Court of the United States is the ultimate court of appeal on all matters not just constitutional matters or matters arising under federal laws. All aspects of the common law including the law of torts and of contracts, can be determined by the High Court, absent a federal element. Such cases do not reach the Supreme Court of the United States. In Australia the common law in all its respects is developed by the High Court of Australia in a single, unitary common law system.
There is another distinctive aspect of our federal system which promotes unity in our jurisprudence. The Constitution provides for the conferral of federal jurisdiction on State courts. With some specific exceptions of matters required to be conducted in Federal courts, matters arising under national statutes and the Constitution are regularly heard in State courts. For example, all national criminal laws are administered by State courts. Certain specific areas such as national taxation laws, national administrative laws, competition law, and, by reason of a collaborative arrangement between State and Commonwealth Parliaments, family law are the exclusive province of the Federal Court or the Family Court. The fundamental area of the common law is primarily a matter for State courts although, where the disputes also involve a federal statute provision, they are able to be conducted in the Federal Court.
As I am sure is true in all your jurisdictions, the judicial hierarchy of Australia is organised in layers, like Dante's Hell and for much the same reason. All States have a Supreme Court and a Local Court. The larger States also have District Courts. There are the larger States also certain specialist courts. At a national level the Family Court deals with all aspects of family law. The Federal Court has a substantial jurisdiction based on federal statutes some of which, as I have mentioned, constitute an exclusive jurisdiction. There is also a recently established Federal Magistrates Court which deals with smaller matters that hitherto were either in the Family Court or the Federal Court. Of course the High Court of Australia is the ultimate appellate court from all Federal and State courts, as I have mentioned.
It is against this institutional background that I wish on this occasion to make some observations about the common law heritage which is shared by the various jurisdictions represented at this conference.
The first and most distinctive aspect of common law procedure is its fundamentally pragmatic quality. We proceed by deciding the facts of particular cases. This process may take a very long time before a principle emerges by a process of induction. The common law method has never been more perceptibly described than it was on a number of occasions by Oliver Wendell Holmes. In one essay he wrote:
"It is the merit of the common law that it decides the case first and determines the principle afterwards ... It is only after a series of determinations on the same subject matter, that it becomes necessary to 'reconcile the cases', as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."[1]
What is involved in this process is the development of legal principles on the basis of actual practical decision-making and dispute resolution over long periods of time in the course of dealing with real problems that arise in real factual situations. This is, of course, a different process than that involved when applying a rule expressed in terms of a formulation of words contained in an overriding code that is to be applied to particular factual situations. That approach is the usual model of decision-making in civil law systems, whose jurisprudence is derived from Roman law and Canon law.
Contemporary comparative lawyers speak of a process of convergence between common law and civil law systems. One aspect of that convergence is the growing importance of statute law in many areas that have originally grown by means of the common law development to which I have referred. This has included significant alteration to contract and tort law and many other areas of the law, some reflected in statutes which have the force of a code.
The difference in approach between common law and civil law systems is well expressed in a metaphor derived from a cognate area of discourse in philosophy, namely epistemology, the theory of knowledge. One of the great controversies of the history of philosophy was between empiricists and rationalists. The former sought to relate knowledge, ideas, truth and meaning to experience, whereas the latter related these matters to pure reason, so that thought about such matters transcended mere experience. It was no accident that most empiricists were British - Bacon, Hobbes, Locke, Berkley, Hume, whose intellectual tradition included the common law method. On the other hand the rationalists - Descartes, Spinoza and Leibniz, were continental, whose intellectual heritage was Roman law and Canon law.
Francis Bacon expressed the contrast between the two schools of philosophy in the following way:
"Empiricists are like ants, they collect and put to use; but rationalists are like spiders, they spin threads out of themselves."[2]
The common law method is the way of the ant: collecting particular fact situations which give rise to decisions relating only to those fact situations and putting them to use by a process of analogy or adaptation in other factual situations.
It is an important aspect of that process of decision-making, to use Oliver Wendell Holmes' insight, that the process involves the work of many minds, not simply a limited number of drafters of a particular code or statute, and which in the adversary system has been tested by persons who are trained to resist the application of whatever principles are suggested in one case to the detriment of their clients in a subsequent case. The furnace of the adversary system provides the heat in which the purity of the metal to be forged can be assured.
The adversary system is one of the two great mechanisms for establishing truth. The other is, of course, the investigatory system of civil law countries. As part of the process of convergence to which I have referred, common law processes of judicial decision-making and administration of justice are adopting features of the investigatory system, at the same time as certain adversarial ideas have been incorporated in civil law procedures.
One criticism that is often directed to the mechanisms of the common law, from those of a rationalist bent, is that the truth of a matter cannot be determined unless that is expressly the task embarked upon. I disagree. The common law adversary process is a manifestation of the power of Socratic dialogue, a respectable means of determining the truth.
It is through the processes of the ant that many of the most fundamental principles and procedures of the common law have been developed over the course of the centuries. That process is a continuing one. It is now being informed by parallel, but not identical, developments in the common law of a number of jurisdictions. Increasingly, judges, especially appellate judges, are looking to international precedent. This is simply one manifestation of the multi-faceted process often called globalisation.
The common law is the product of the simultaneous operation of continuity and change. Fundamental principles have developed over centuries, in the manner I have described, and these principles continue to inform and energise the practical application of the law and direct its continued adaptation to new challenges and changes in technology, economy and society.
The fundamental principle referred to as the rule of law encompasses an idea of legality and of legitimacy in the administration of justice. Laws provide a predetermined rule or standard by which behaviour is to be assessed, particularly the behaviour of those exercising power and authority. Perhaps the most essential characteristic of the rule of law is that the law must operate to constrain the arbitrary exercise of power, both private and public. Persons and institutions who have power must exercise that power within, and subject to, a comprehensive framework of binding rules, The rule of law is not inconsistent with the exercise of authority. It is, however, inconsistent with the exercise of authority in an arbitrary manner.
There is no universally accepted idea of the rule of law or of the content of the concert. The label, I believe, becomes progressively less useful as its scope extends. However, its core content includes the idea of legality, to which I refer, and which is a fundamental part of our common law inheritance.
The importance of this approach to the rule of law has never been more forcefully or appropriately stated that it was by the playwright, Robert Bolt in his play A Man For All Seasons about Thomas Moore, the Lord Chancellor of England who defied Henry VIII and was beheaded. In the play Thomas Moore delivers a passionist defence of the rule of law to his future son-in-law, Roper. Moore asserts that he knew what was legal, but not necessarily what was right, and would not interfere with the devil himself, until he broke the law. The following exchange then occurred:
"ROPER: So now you give the Devil benefit of law!
MOORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MOORE: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down ... do you really think you could stand upright in the winds that would blow then? Yes I'd give the Devil benefit of law for my own safety's sake."
This imagery of the law as a protection from the forces of evil is an entirely appropriate one. The interaction between positive law and morality is a matter that has been the subject of debate amongst philosophers for many centuries. But the pragmatic heritage of the common law is plainly manifest in Thomas Moore's riposte.
One of the fundamental principles of the administration of justice in a common law system is the principle of open justice. This is sometimes referred to in terms of the saying: "Justice should not only be done but should manifestly be seen to be done". For about a century it has now been firmly established in both England and Australia that there is no inherent power in a court to exclude the public. Various statutory provisions have been adopted which permit court closure or restriction of publication. But the fundamental rule is that judicial proceedings must be conducted in open court, to which the public and the press have access. Exceptions are strictly confined. As the Privy Council once put it, "Publicity is the authentic hallmark of judicial as distinct from administrative procedure"[3].
The principle manifests itself in a wide range of rules of procedure and of substantive law. It lies at the foundation of the obligation of a court to publish its reasons. The court is not only under an obligation to provide reasons to the parties in a case. Publication of reasons is to the public. Cases frequently arise as to the adequacy of reasons indicating the vigour of the principle of open justice in this respect.
Judges can no longer rely on the advice which Lord Mansfield gave to a general who, as Governor of an island in the West Indies, would also be obliged to sit as a judge:
"Lord Mansfield said to him 'Be of good cheer - take my advice - and you will be reckoned a great judge as well as a great commander in chief. Nothing is more easy; only hear both sides patiently - and consider what you think justice requires, and decide accordingly. But never give your reasons - for your judgment will probably be right, but your reasons will certainly be wrong."[4]
One of the reasons for requiring judicial impartiality, in terms of disqualification for bias, is the appearance of justice. It is determined by a test of what fair-minded people - not just the parties, but the public - might reasonably apprehend or suspect. Actual bias is not the test. A reasonable apprehension is enough because, as it is said "Justice must be seen to be done".
The issue also arises in Australian constitutional law with respect to the question of separation of powers. The principle of open justice is sometimes referred to when determining whether a function conferred on a judicial officer is incompatible with the office and accordingly, cannot be conferred on a judge.
The rule of natural justice that a judicial decision-maker must accord procedural fairness by way of a hearing is also often justified on the basis of the importance of the appearance that justice be done.
I note in passing two examples of the particular strength of character of British juries and advocates, at least in the past. The English Court of Appeal once held that a trial did not miscarry despite the fact that during the accused's Counsel's address to the jury the Chairman of Quarter Sessions kept sighing and groaning and was heard to say "O God" a number of times[5].
On another occasion the Court of Appeal rejected an allegation that a murder trial miscarried when the judge appeared to be asleep for fifteen minutes. The court was satisfied by a perusal of his summing-up that he must have been awake and that the mere appearance of being asleep was not enough. The court referred to the principle that "Justice must be seen to be done" as a "hallowed phrase" and described the appearance of the judge as inattentive or asleep as a "facile" application of the principle. Their Lordships concluded:
"It was not wholly without relevance that none of the experienced Counsel present found it necessary to take steps to awaken the judge or to acquaint him with the fact that his appearance seemed to be less alert than it should have been."[6]
It appears that English counsel are, or at least were, made of the same stern stuff as English juries. I doubt whether these authorities will survive the English adoption of the Human Rights Act.
Open justice also serves the important function that victims of crime, and the community generally, may understand the reasons for criminal sentences. The significance of this function was well expressed by Warren Berger, when Chief Justice of United States:
"Civilised societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental natural yearning to see justice done - or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is 'done in a corner or in any covert manner'. It is not enough to say that results alone will satiate the natural community desire for 'satisfaction'. A result considered untoward may undermine public confidence, and when a trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively it is important that society's criminal process 'satisfy the appearance of justice' and the appearance of justice can best be provided by allowing people to observe it.
...
People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case."[7]
The operation of various rules designed to ensure the fairness of a trial is also based on appearances, for example, the prohibition of undue interference by a judge and of improper conduct by a court officer.
The principle of open justice is the basic mechanism for ensuring judicial accountability in a common law system. The cumulative effect of the requirements to sit in open court, to publish reasons, to accord procedural fairness, to avoid perception of bias and to ensure the fairness of a trial, that is the way the judiciary is held accountable to the public.
The "public" which, in a democracy, the judiciary serves, must not be understood in any immediate popular sense. The judiciary serves the "public" understood as a historical continuum: acknowledging debts to previous generations and obligations to future generations.
The relationship between the principle of open justice and judicial accountability has been emphasised by Chief Justice Gleeson, the Chief Justice of Australia, at a time when he occupied my post, he wrote:
"The corollary of the obligation of judges to conduct their business in public, and to give reasons for their decisions, is that they are exposed and are regularly subjected to public comment and criticism. The practical importance of this should not be underestimated, especially in an age when attitudes towards authority are no longer deferential, and are frequently the opposite. Being a judge is not a suitable occupation for the thin skinned."[8]
His Honour said with respect to the obligation to give reasons:
"This form of accountability is not to be taken lightly. The requirement of giving a full reasoned explanation for all decisions has profound importance in the performance of the judicial function. Apart from judges, how many other decision-makers are obliged, as a matter of routine, to state, in public, the reasons for all their decisions? Those decisions, other than those made by judges, are made by people who may choose whether or not to give their reasons."[9]
The principle of open justice did not emerge in our legal history by a process of deduction from an abstract ideal or general formulation of words. Like all other important aspects of our legal system, the principle was derived from observation of the actual practice of dispute resolution over long periods of time which, once recognised as a principle, influenced further development of the practice.
The word "court" in the sense of the judicial institution, shares a common origin with a royal or aristocratic "court" which, by its nature, involved a broader range of persons than the immediate disputants. The early use of juries as representatives of the community, also implied public access. Such are the pragmatic origins of fundamental principle in the common law[10].
The same can be said of another fundamental principle of the administration of justice, the principle of a fair trial. That principle is another manifestation of the slow development over a long period of time, in the course of the practical determination of real issues of principles of great, indeed overriding, importance.
I use the word principle deliberately. In Australia we do not have, in the form of a Bill of Rights or any equivalent document, a formal recognition of a right to a fair trial. A principle may be more flexibly applied than a freestanding right. However, the vigour of the principle of a fair trial in our system leads me to doubt whether, at least in this respect, the adoption of a Bill of Rights' type provision containing such an express undertaking would lead to any substantial difference in the actual operation of our legal system.
The principle of a fair trial operates as a qualification on the ability of the legal system to identify the truth. The reason for the development of the principle is not that we do not value truth in the common law tradition. It is just that there are other values with which the pursuit of truth may sometimes conflict. This proposition was stated with great eloquence by Vice Chancellor Knight Bruce in 1846, when he said:
"The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, the obtaining of these objects, which however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly, or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination ... Truth, like all other good things may be loved unwisely - may be pursued too keenly - may cost too much."[11]
The restraints on the processes for determining the truth in our common law system are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. The principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. It took many years of pragmatic development before a single overriding principle was recognised. Once so recognised it informed and energised further developments in the law.
In Australian jurisprudence, the principle of a fair trial is based on the inherent power of a court to control its own processes, particularly, on its power to prevent abuse of its processes. This is quite different in its origins to foundation of such a principle in a Bill of Rights or other such overriding code provision.
The court's power to prevent its processes being seen to tolerate illegal or improper conduct has been exercised in numerous ways over the years. For example, the Judges' Rules adopted as a guide for proper police conduct in 1912, and for many years implemented by courts in Australia until, in large measure, being superseded by statutory provision, were based on this power. The detailed controls on confessional evidence which developed over a period of time were also, in large measure, based on such considerations. So was the emergence of a discretion to exclude evidence obtained by illegal or improper means. These matters go beyond the principle of a fair trial to a general principle of fairness.
It is not possible to attempt to list exhaustively the attributes of a fair trial. The issue has arisen in a seemingly infinite variety of actual situations in the course of determining whether something that was done or said either before or at the trial, deprived the trial of the quality of fairness to a degree where a miscarriage of justice had occurred. However, over the course of centuries certain identifiable issues have arisen on many occasions and led to similar judgments being made as to their effect on fairness of proceeding.
There is probably no aspect of the preparation for a trial or of actual trial procedure which is not touched, and often determined, by fair trial considerations. As Lord Devlin once put it:
"Nearly the whole of the English criminal law of procedure and evidence has been made by the exercise by the judges of their power to see that what was fair and just was done between prosecutors and accuseds."[12]
The kinds of issues that have arisen are so multifarious that only a partial list can be proffered. Nevertheless, the list indicates the vigour of the principle in our common law tradition:
* The issue often arises of whether a trial should proceed at a particular time or in that geographical location or before a particular judge. Adjournments and changes of venue occur frequently, for example, to allow the effects of adverse publicity to dissipate. There may be extreme cases in which even a permanent stay is appropriate.
* The imposition of an onus of proof and the differentiation of the standard of proof between civil and criminal proceedings, reflects an understanding of what fairness requires in the particular circumstances, relevantly, if the special stigma of a criminal conviction is to be attached to a citizen.
* The detail of the obligation to obey the rules of natural justice applies with particular force and encompasses all of the requirements of a fair hearing, including reasonable notice of the case a person has to meet and the provision of a reasonable opportunity of presenting his or her case.
* All of the detailed rules and practices with respect to when notice or disclosure is required, when an adjournment is appropriate and the order of proceedings, particularly the right of cross-examination, have, as their source, centuries of consideration by generations of judges of the interaction, sometimes synergistic, sometimes in conflict, between the search for truth and the requirements of a fair hearing.
* Identification of the principle that the unavailability of legal representation for an accused charged with a serious offence, should lead to a stay of the proceedings, is obviously based on this principle.
* The requirements of clarity in a criminal indictment is reinforced in that context by the need to avoid duplicity or latent ambiguity and by judicial control of the size and content of an indictment. These rules are substantially based on fairness considerations.
* The right of an accused to fair and timely disclosure of the Crown case and of the materials held by the Crown applies the principle.
* The prosecution obligation in a criminal trial to put its case fully and fairly and not to split its case, so that the accused knows in full the case against him or her before deciding to adduce evidence.
* The requirement that an interpreter be available for an accused so that the accused can follow the proceedings.
* The determination of circumstances in which fairness of a trial has been affected by incompetence of counsel does on occasions require appellate intervention.
* The obligations on a trial judge in the case of unrepresented litigant to ensure that the litigant receives such assistance as to enable a fair trial to occur.
I interpolate at this point to acknowledge that all of our jurisdictions are plagued by the increasing number of unrepresented litigants and the difficulties they pose for the effective operation of our processes. It may be that we have been too accommodating in this regard in the past. In appropriate cases, we need to treat some litigants in person in the same way as Sir Thomas Beecham recommended a conductor should treat an orchestra: "Never smile encouragingly at the brass section".
The common law of evidence developed over many centuries and has, comparatively recently been codified in Australia at the national level and in this State. That body of law contains numerous exclusionary rules which apply to exclude evidence that is otherwise relevant. If the search for truth were the over-riding consideration of a trial, there would be no such exclusionary rule. Relevance would be the only criterion. The multiplicity of exclusionary rules in our law of evidence is a manifestation of the way in which the principle of a fair trial pervades our trial procedures.
We have rules requiring a judge to weigh probative value against prejudicial effect and, if the latter outweighs the former, then the evidence should be excluded. There is an overriding unfairness discretion capable of being exercised. Over many years of experience, the common law has developed a keen appreciation of circumstances in which evidence may be unreliable, in a way not necessarily apparent to juries. Sometimes these considerations lead to the exclusion of evidence. On other occasions they lead to warnings being given to a jury.
The complex body of doctrine associated with the hearsay rule is also derived from such an understanding of unreliability. Similar considerations underlie the exclusion of evidence of general bad character, of similar fact and tendency evidence.
In many situations, the requirement of a fair trial may not demand the rejection of evidence. The prejudice may be alleviated to a sufficient degree by the trial judge providing directions and warnings to the jury. The nature and content of these directions and warnings has been determined in many different situations and in some, for example, in cases involving allegations of sexual assault have become standardised and an integral part of the process of conducting such a trial.
Similar practices have arisen from the experience of the law with respect to identification evidence. Juries give such evidence more weight than the reliability of a person's recollection warrants. Witnesses tend to give evidence of identification with a degree of assurance that the plasticity of human memory does not justify. The use of photographs for purposes of identification may distort the process in a number of ways such as the "rogues gallery effect", where the possession of a photograph used by the police may suggest that the person has previously committed crimes and the "displacement effect", by which the photograph of the accused displaces the original memory of the offender in the mind of witnesses and the subsequent confirmation of identification, usually in forceful terms, is actually a memory of the photograph, not of the person.
Such distortion can affect the fairness of the trial. In accordance with well-recognised principles, determined over centuries of practical experience, lead to the exclusion of evidence or to directions and warnings to the jury as to the use of the evidence.
All of these numerous rules, practices, procedures and requirements are able to be viewed today as particular manifestations of an over-riding principle of a fair trial. However, as I have indicated above, in accordance with the common law method, the principle did not come first. The rules did not emerge by a process of deduction from an abstract idea. What came first were numerous specific manifestations of difficulties emerging over the course of centuries of determining real cases, originally in England, and in recent centuries, in other common law nations. It was the actual practice of legal decision-making and dispute resolution, in the course of dealing with these real problems which gave rise to the specific rules and practices in respect to evidence and procedure which are now capable of being expressed in a legal principle of general application.
The requirements of a fair trial are one manifestation of the diverse values served by our common law tradition. The values of justice, truth and fairness lie at the heart of our legal system. They are the foundation of the maintenance of public confidence in the administration of justice which Justice Gummow of our High Court has described to be "In present times the meaning of the ancient phrase 'the majesty of the law'"[13].
Over recent decades, common law courts have had to deal with the emergence of a new dominant ideology in public discourse. The standards of commercialism and managerialism have swept aside many other values. They dominate public debate to an unprecedent degree throughout the Western world. It is noticeable, for example, that although once our cities were dominated by public buildings - a parliament, court, town hall, cathedral - now all are dwarfed by commercial office blocks and public buildings are often constructed in an indistinguishable form. There are dangers in such uniformity. Diversity in the values served by social institutions is as significant for the health of our society as biodiversity is for our ecology.
At times the focus on the universal applicability of market forces borders on monomania. The common law has seen off a number of monomanias. In the past they have tended to come in the form of religion. It once came in the form of the divine right of kings. It now comes in the form of the divine right of markets. However, no claim to universal applicability of commercial or economic values is compatible with the simultaneous pursuit of truth, justice and fairness.
The courts are an arm of government. They have not been and cannot be insulated from changes in attitude about the proper role of government and the appropriate ways to conduct governmental activities. Nevertheless, there are limits to which such pressures can be accommodated in the law without compromising the fundamental task of delivering justice - by which I mean fair outcomes arrived at by fair procedures - in accordance with law.
The courts must be concerned with matters such as excessive delays, which of themselves often deny justice. Nevertheless, there are limits to the ability of an adjudicative process to resolve matters fairly in a short period of time. Speed is a particular obsession of contemporary discourse. However, speed is like light: if you have too much, it will obscure not illuminate.
I grew up in a country in which the Prime Minister was able to travel to England for six weeks by boat with the Australian cricket team, stay for a month or so watching cricket and then return by boat, taking another six weeks to do so. This is inconceivable today.
The Prime Minister at the time, Sir Robert Menzies, would never have approved of one day cricket: a game with special rules designed to speed things up, including penalising a team for a slow over rate. Most other changes in sports have been in the same direction. Tie breakers in tennis. Olympic sports like luge, cycling and canoeing are now measured in milliseconds.
The process of acceleration is unremitting. In the United States it took 46 years for 25 percent of the population to be connected to electricity. It took 35 years for that proportion to get the telephone, 16 years for that proportion to take up personal computers, and seven years for that proportion to be connected to the internet.
Where we once spoke of words per minute, we now speak of characters per second. One can buy telephone answering machines with a quick replay button - in digital format, so that the replay is accelerated without the high pitch of a Disneyfied chipmunk. In Tokyo one restaurant charges by time: at a rate of yen per minute. You clock in, you eat as much as you can, you clock out and your bill is computed on the time difference. Indeed, it is even necessary for us to create the illusion that we are saving time even when we cannot do so. On many elevators, the "door close" button is in fact a placebo. It has no function, other than to placate those who measure their life in seconds.
Yesterday I typed the words "information overload" into the Google search engine and received about 239,000 hits. Information overload indeed. It is sometimes believed that there are only two things that have not speeded up in recent times. These are traffic and litigation.
Throughout the common law world over recent decades considerable effort has been directed to developing case management systems which are designed to reduce delay. There is an honourable tradition of the common law in this regard. For many centuries, indeed it was only abolished in the 18th century, the common law had a mechanism known as peine fort et dure, a form of torture inflicted upon a prisoner indicted for felony who refused to plead and submit to the jurisdiction of the court. Heavy weights were applied to his body until he consented to be tried by either pleading "guilty" or "not guilty" or until he died. This was an early form of case management. It remains a model for some contemporary practitioners.
In some circles there seems to be a belief that it is always possible, without exception, to achieve more with fewer resources. I have in mind the response of an ardent micro economic reformer who noticed that a string quartet performs a work by Mozart in exactly the same time in 2004 as it had been performed in 1804. For 200 years there has been no increase in productivity whatsoever. This reformer, sure that he has discovered a great scandal in the form of a collusive arrangement amongst professional musicians, insists that the competition authorities investigate.
Some things take time. Justice is one of them. In some spheres of conduct productivity improvements are not possible without diminution of quality.
I reject the tendency to identify courts as merely some kind of publicly funded dispute resolution service. This is much too narrow a focus and, indeed, is potentially subversive of the rule of law. Courts perform functions that go well beyond resolving disputes. The enforcement of legal rights and obligations, the articulation and development of the law, the resolution of private disputes by a public affirmation of who is right and who is wrong, the denunciation of conduct in both criminal and civil trials, the deterrence of conduct by a public process with public outcomes - these are all public purposes served by the courts, even in the resolution of private disputes.
The judgments of the courts are part of a broader public discourse by which a society and polity affirms its core values, applies them and adapts them to changing circumstances. This is a governmental function of a broadly similar character to one of the functions performed by legislatures. It occurs in the course of determining private disputes.
The courts do not deliver a "service". The courts administer justice in accordance with law. They no more deliver a "service" in the form of judgments and decisions than a parliament "delivers a service" in the form of debates and statutes. I do not doubt that courts serve the people. But they do not provide services to the people. This distinction is not merely sematic, it is fundamental.
Litigants are not consumers. Litigants have rights. They come to assert their rights in a court, not to exercise some form of consumer choice. In any event, human life cannot be characterised simply as a series of consumer choices. This is clearest, perhaps, in the criminal justice system where, in substance, the community asserts rights by way of protecting itself. In all cases litigants are and should be treated in the courts as citizens, not consumers.
Librarians are, no doubt, as conscious as any other section of the community, about the greater salience being given these days to issues of economy, efficiency and effectiveness. This salience occurs in competition with and, frequently, in preference to, other values of governmental activity such as accessibility, openness, fairness, impartiality, legitimacy, participation, honesty and rationality. As the dominant perspective of the age, this shift in priority of values is something to which courts and, I am sure librarians, are subject to and have to adapt to. Nevertheless, there are limits to which this shift can go without fundamentally undermining the role of the law.
One characteristic of the administration of justice is its inefficiency when compared with some other systems of decision-making. This is not an accident. It reflects the deliberate institutional development of the common law over the course of some 900 years.
There is no doubt that a much greater volume of cases could be handled by a specific number of judges if they could sit in camera, dispense with the presumption of innocence, not be constrained by obligations of procedural fairness or the need to provide a manifestly fair trial, act on the basis that no-one has any rights and not have to publish reasons for their decisions. Even greater "efficiency" would be apparent if judges had made up their minds before a case began. There are places where such a mode of decision-making has been, and indeed is being, followed. We do not regard them as role models. The entire heritage of our common law tradition is to the contrary.
Our system of justice is not the most efficient mode of dispute resolution. There is no need to make any apology for that fact. After all, democracy is not the most efficient mode of government. We have deliberately chosen inefficient ways of decision-making in the law in order to protect rights and freedoms. We have deliberately chosen inefficient ways of government decision-making in order to ensure that governments act with the consent of the governed.
The values that are served by our system of justice, and by our parliamentary institutions, cannot be regarded as subordinate to, let alone some kind of manifestation of, the allegedly superior values of a market system.
I agree with the observations of Rabbi Jonathon Sacks the Chief Rabbi of the British Commonwealth, who argued that the kind of society that gives rise to and is able to sustain a market economy tends to be a society with a strong respect for certain kinds of tradition. He was concerned with religion, but his analysis applies to our mechanisms of governance. Rabbi Sacks expressed concern that traditions were being undermined by the power of the market. Indeed, he identified the recent global triumph of the market as, perhaps, the market economy's own worst enemy. He said:
"When everything that matters can be bought and sold, when commitments can be broken because they are no longer to our advantage, when shopping becomes salvation and advertising slogans become our litany, when our worth is measured by how much we earn and spend, then the market is destroying the very virtues on which in the long run it depends.
That, not the return of socialism, is the danger that advanced economies now face. And in these times, when markets seem to hold out the promise of uninterrupted growth in our satisfaction of desires, the voice of our great religious traditions needs to be heard, warning us of the gods that devour their own children, and of the temples that stand today as relics of civilisations which once seemed invincible ...
The market, in my view, has already gone too far: not indeed as an economic system, but as a cast of thought governing relationships and the image we have of ourselves ... The idea that human happiness can be exhaustively accounted for in terms of things we can buy, exchange and replace is one of the great corrosive acids that eat away the foundations on which society rests; and by the time we have discovered this, it is already too late.
The market does not survive by market forces alone. It depends on respect for institutions, which are themselves expressions of our reverence for the human individual as the image and likeness of God."[14]
The courts have preserved - more successfully than many other areas of government - a distinctive public service ethos. This has been possible, in significant measure, by reason of the constitutionally guaranteed independence of the judiciary. That independence has enabled the courts, notwithstanding pressures to the contrary, to continue to apply the fundamental procedures and principles of the common law, including the principle of open justice and the principle of a fair trial, to which I have referred. I am happy to say that at least in Australia, this distinctive ethos of public service is not likely to change in the case of the courts.
There is a great deal of wisdom deeply embedded in institutions which have grown and adapted to changing circumstances over long periods of time. Like so many other things, Australians tend to take the benefit of these traditions for granted. However, anyone with the remotest interest in what has been happening and is happening in numerous other nations without these traditions, must recognise the extraordinary advantages we have, both in terms of social stability and economic welfare, from the strength of these institutions.
The institutions are, however, changing and will continue to change. There have been, for example, significant modifications of the adversary system. This is an instance of convergence between common law and civil law systems. Common law judges no longer sit back and allow cases to be conducted before them by the parties, without any form of guidance or intervention on the part of the court. In response to the changed attitudes to governance, to which I have referred, the courts have assumed a greater degree of responsibility for the speed and efficiency with which their caseload is administered. This has required a degree of intervention in the conduct of proceedings that was not part of the common law tradition.
The traditional image of justice is of a woman with a pair of scales wearing a blindfold. The position was otherwise in Lilliput, as Gulliver found. In Lilliput not only does the image of justice not wear a blindfold, she has eyes in the back of her head. That is an appropriate image for the era of judicial case management.
Nevertheless, there remain differences between the concern with case and caseload management and the degree of control of proceedings exercised by judges in civil law jurisdictions. There have been changes and modifications to the adversary system, but it still remains, in its essence, based on the common law tradition.
One major difference between common law and civil law judges is in the publication of reasons for decision, to which I have referred as an essential aspect of the principle of open justice. Although this varies from one civil law jurisdiction to another, the basic approach of a judge writing a decision in a civil law jurisdiction is to portray the process as one of obedience by the judge to a higher requirement. In France, perhaps more than Germany, all traces of discretion, doubt and individuality tend to be removed from the published judgment. In most civil law countries it is almost inconceivable to have the judge formulate and consider a range of alternatives, give reasons for choosing between them and express doubts and qualifications in the process. Even in the area of statutory construction, a common law judge is perfectly prepared to consider a range of alternatives. He or she does not pretend that the words chosen by the parliament can only have one meaning. This difference becomes clearest in the course of appeals, where dissents are frequent and often expressed in strong language.
I believe it is intellectually more honest to be open about the process of judicial decision-making. It must be the case that civil law judges encounter similar problems, even in the construction of codes. In this way the difficulties and the process of a continual adaptation of the common law are revealed. As Lord Diplock once put it:
"The beauty of the common law [is] it is a maze and not a motorway."[15]
Although there are various forms of judicial style in judgment writing, a high level of candour and a high level of individuality, is a feature of the common law tradition. Perhaps I can leave you with two such examples.
The first if from Lord Denning who commenced a judgment in the following way:
"It happened on April 19, 1964. It was bluebell time in Kent. Mr. And Mrs. Hinz had been married some ten years, and they had four children, all aged nine and under. The youngest was one. Mrs. Hinz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child. On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island ... etc."[16]
The second is the opening paragraph of the then Justice Megarry's judgment in the matter of Re Flynn[17] and I leave you with this piece of Australian nostalgia:
"Errol Flynn was a film actor whose performance gave pleasure to many millions. On June 20, 1901, he was born in Hobart, Tasmania; and on October 14, 1959, he died in Vancouver, British Columbia. When he was 17 he was expelled from school in Sydney; and in the next thirty-three years he lived a life that was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould; and in some respects Errol Flynn's was more stellar than most. When he died, he posed the only question that I have to decide: Where was he domiciled at the date of his death?"
1 O Wendell Holmes, "Codes and the Arrangement of the Law" (1870) reprinted in Nobik , Ed, The Collected Works of Justice Holmes (1995) vol 1, pp212-213 (reference omitted).
2 From Cogitata & Psia (1607) quoted in Cottingham J The Rationalist , Oxford UP (1988), pp1-2.
3 See McPherson v McPherson (1936) AC 177.
4 Quoted in Jackson, Natural Justice, 2nd Ed (1979) p97.
5 R v Hircock (1971) QB 67.
6 R v Langham (1972) Crim LR 459.
7 Richmond Newspapers Inc v Virginia (1980) 448 US 555 at 571-572.
8 Gleeson "Judicial Accountability" (1985) 2 The Judicial Review, 117 at 123-124.
9 Ibid at 122.
10 See Netime "The Principle of Open Justice" (1984) 8 U Tas LR 25, 26-27; Raybos Australia v Jones (1985) 2 NSWLR 47-51; Richmond Newspapers Inc v Virginia supra at 565-566.
11 See Pearse v Pearse (1846) 1 DeG & Sn 12 at 28-29; 63 ER 950 at 957.
12 Connelly v DPP (1964) AC 1254 at 1347.
13 Man v O'Neill 1996-97
14 Jonathan Sacks "Markets and Morals" (2000) 105 First Things 23.
15 Morris v C W Mountain & Sons (1966) 1 QB 716 and 730.
16 Hinz v Berry (1972) 2 QB 40 at 42.
17 (1968) 1 All ER 49 at 50.
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