Being a Judge: Judicial Technique, Independence and Labels

Sir Harry Gibbs Memorial Oration, Sydney

Chief Justice Allsop[1]  30 April 2022

I am grateful for the opportunity to speak to this Society that honours the name of a great chief justice and before that a forceful and effective politician, especially in a lecture to honour the name of another great chief justice who was not a politician.

I would like to say something about judicial technique and approach because it has fascinated me since becoming a judge: What is it that we do? How do we do it? What is the nature of judicial power? What is the legitimate relationship between word, rule, principle, logic and intuitive result? Such questions seep or ooze out of even the smallest and most mundane problems.

From this discussion it will become evident that I treat labels such as ‘black letter’, ‘activist’ and ‘conservative’ as unhelpful as free-standing meaningful terms.

There is a difficulty in identifying the starting point in a lecture such as this. This is because there are so few, if any, static points of position or definition at which to begin.

Perhaps one can commence by some general observations about law and the judicial task which are both contemporary and timeless. At the outset, my debt to the depth of thinking of the great Benjamin Cardozo during the 1920s in his wonderful trilogy: The Nature of the Judicial Process, The Growth of the Law and The Paradoxes of Legal Science must be acknowledged.

Law, in its form, has constituent constructed materials – statutes, the interpretation of their given meaning, judicial rule-making, including principles of application, custom, and informing principle. These imperfectly segregated types of material are drawn from democratic parliaments, authorised executives, history, custom, values, social mores, and expectations – basally human, societal and by reference to customary activity within and between societies.

How these materials combine, coalesce, disengage, change and apply to complex factual circumstances are both legal and social questions. This must be so as law is a binding agent, part of the structural form and tissue of human society: its form, content and application being determined or shaped by its social, and its human, character.

A society which values freedom, the individual as well as the group, happiness and the dignity of the individual, order and appropriate certainty, and which eschews unfairness and embraces mercy, cannot exist without law that reflects these evanescently subtle and related qualities. In turn, these qualities demand that social structure, form and content, and legal structure, form and content rest on consent, respect, trust and confidence. This involves a broad democratic consent to power, its sources and its modes of application.

Our social and legal structures, forms and contents, being human, and concerned with or manifesting human relations, reflect human values, practicalities and felt necessities.

As part of a Western politico-legal tradition we owe our view of the world and our view of our place in society, to history – especially European and British history of the 17th and 18th centuries; although the subtle strength and patient force of First Nations’ human and societal visions will see, in time, a settler society made whole by Reconciliation. The European societies of the 17th and 18th centuries owed their view of the world to centuries past, most particularly to the separation of church and state in the 11th century and following and the emergence of the equality of the soul before God – regal and common, rich and poor, male and female, alike.[2] But the 17th and 18th centuries were critical for the conception and acceptance of the tripartite conceptualisation of state power: legislative, executive and judicial.

In a once (overwhelmingly in the West) Christian or Judaeo-Christian ethically-structured and dominated society (a characterisation which is not beyond dispute or debate in contemporary Australia) the above secular, yet religiously founded or anchored, view was stable. A strongly founded separation of church and state (albeit with national and regional variations) was conformable with the social groups in, and mores of, society. The secularisation of this moral equality is fundamental to how we view the law, equality before the law and the dignity of the individual.

The tripartite division varied from strict, to modified, to amorphously recognisable, for different reasons. But, invariably, the tripartite division rested on an intuitive mistrust of power and its concentration and aggregation, and the sense of the need to diffuse it. So, trust was built upon mistrust: the first of our antinomies, of our antitheses, and of our reconciliations or adjustments, through synthesis and practical human judgement and compromise, of apparent irreconcilables.

We meet many such opposites, antinomies, antitheses and apparent irreconcilables. That is because such are the core of day-to-day judicial work (and, indeed, everyday life): especially certainty and uncertainty; rule, principle and exception; the endemic impossibility of definition, despite the essentiality of the requisite degree of definition, of taxonomical structure, and of the expression of abstract concepts, all in the face of implicit wholeness of human relational ideas drawn from thought, feeling and emotion; and the limits, but the illuminating power, of text: of words. These unending, but immediate, reconciliations make up much of our task as judges and lawyers to express and apply the law for the individuals who come before us and for the society, all of whom and which we serve. This is so because, as Cardozo posited: The enduring conflict is between stability and progress, mediated by a philosophy of change informed or supplied by a principle of growth (The Growth of the Law p1).

Judges who form or comprise courts hold a position in expressing doctrine, clarifying rule, shaping the application of mores, and most importantly, in affecting the lives of people by their carriage and deployment of power. This last consideration – the effect of power on people is the source of the necessity for division of power: not just to make the power diffuse, but to characterise and protect judicial power. As judicial power (whether of the Commonwealth, the State or the Territory) to resolve controversies between subjects, including controversies involving the state – its ultimate purpose is to protect people and society by resolving controversies peacefully, fairly, with dignity and, where appropriate, mercy: Its essential character is protective, not assertive. It is unique in that regard.

Judicial power cannot be defined, but it can be articulated. When wielded or deployed it is felt – emotionally and physically: at the sentence of the person; at the pronouncement of the order for custody; at the sequestration of property; at the judgment for money that may presage ruin. These deeply moving and sometimes, indeed often, harmful, acts must come from persons or forms that are disinterested, fair, decent, human in character and appearance and context, yet aloof and abstracted to a degree, trusted and respected with a recognition that they act selflessly, charged as manifestations of just state power, though with humanity that necessarily involves the possibility of human failing. Such people, as agents of the state, are to be free of partisan considerations, anger or love: hence the judicial oath – without fear or favour, affection or ill will. That is the importance of the judicial oath and of the conception, understanding and reliance upon an independent judiciary.

The uncertainty, the evaluation, and the struggle with necessarily present antinomies in many, if not all, contested questions is difficult to grasp even for trained lawyers of the highest calibre. Even when grasped and accepted, there is the question of disputed views in the resolution of these opposites, of these uncertainties, and of these evaluations, in the particular case. This is not to say (far from it) that there is a personal or institutionally embedded incoherence or choice in the law or in its application. But it is to say that there is always the need for the presence, in the exercise of this protective power, of the elements of judicial technique that can (though not always do) inspire even in the most cynical or hardened litigant, indeed even in the enemy of the state, a respect for, and a trust in, the proper and decent exercise of the power that is affecting him or her: That there is thus present in the litigant a recognition by him or her of the respect of the state for the dignity and worth of the subject – the person who is the object of the exercise of power being wielded – him or herself.

To achieve this, some elements of judicial technique are vital: disinterest, diligence, a faithfulness to precedent where binding and to properly construed text, fairness, an eschewing of political partisanship or loyalty, the setting aside or modification of the particulars of chosen religious faith, a lack of anger or emotion, the application of reason and practical judgement, a respect for the dignity of all and an empathy for all before the court which recognises the powerlessness and reduced position of all put into the position of litigant – the dependence on the judgement of others. When present, these elements coalesce and conspire to deny the arrogance of position and the arrogance of power. The importance of all these qualities is derived from the inter-relationship all have between the human and the abstract. Independence is, in this context, not merely abstract, mechanical or formal, but also intensely human. Hence the importance of the test for apparent bias: How a reasonable bystander would see things. This is an anthropomorphised construct and is part of the embodiment of the important abstract concept – just state power.

Different judges sometimes bring different approaches to bear on a problem. Sometimes one has a concentration on text; another on context. Neither approach is definitive of any pattern of approach or quality of black-letterness or activism.

Constitutional implications and structures are good examples. Implications from structure and context may be deeply rooted in original intention. The implied intergovernmental immunities doctrine was an implication from the whole of the Constitution in its formative historical context. It was dismantled by the forceful literalism of the Engineers Case.

Chief Justice John Marshall had a grand vision of constitutionalism not derived from the text alone; a vision of the place of the United States Constitution and of the role of the Supreme Court in building a nation. 

The High Court in Kable,[3] Kirk,[4] and Graham and Te Puia[5] and related and illustrative cases has bound, through text and structure, hinged on s 75(v), jurisdictional error and the place and nature of judicial power, the demand of legality of all Parliaments and Executives in Australia: Built on subtle and powerful perceptions of the structure of the Constitution, embedded in a common law tradition of freedom and democracy, guarded by a form of governmental power (judicial power) whose character and exercise is separate, not assertive, but protective – of society, of individuals and of the constitutional structure, by its supervision of public and private power.

Which of these approaches was ‘conservative’? Which ‘activist’? Which ‘black letter’? The questions are of no utility to examine meaningfully the approaches taken.

For the judiciary to succeed in its protective function, it must enjoy the trust and confidence of its citizenry: not part of it, all of it: The trust of society. That trust ultimately derives from a confidence in the lack of partisanship of the courts in execution of their task and in the presence of judicial technique, not personal assertion in the execution of the task. For that trust to be secured and maintained, the law and legal doctrine can never be allowed to become the tools of the powerful. Ever to become such is an existential danger to the administration of justice in a democracy.

The presence of social and human values in the law in the silent movement of social values and expectations is ever present. One needs perspective, sometimes of time, sometimes of quiet reflection, to appreciate how these interactions are resolved by law and legal technique, but affected deeply by social values, a sense of balance and a suspicion of the utility of simple general propositions taken to their logical conclusions. Law, like life, can sometimes be simple; but often, indeed generally, neither is.

The conclusion by the United States Supreme Court in 1905 in Lochner v New York[6] that a statute that prohibited requiring employees in bakeries, to work more than 60 hours per week was unconstitutional as an unreasonable, unnecessary and arbitrary interference with the liberty of the individual to contract, contrary to the 14th Amendment and the equal protection of the law was deemed by some contemporaneously (the so-called Progressives) as activist. The majority judgment received withering criticism of Justice Oliver Wendell Holmes in dissent in support of democratic legislative power. In that dissent he memorably said:

“General propositions do not decide concrete cases. The decision will depend on a judgement or intuition more subtle than any articulate major premise.”

If one must descend to meaningless labels the majority justices in Lochner could be said to have been both conservative and activist at the same time.

As lawyers and judges we live in a society with social values, morals and expectations which have been built over time by forces of history and circumstance. We also live and work in the shadow of great thinking and great thinkers. But we deal with the human and practical (often prosaic) concrete problems. But the drift and content of philosophical thinking are deep influences on the law, because they are deep influences on society.

“Black letter law” may be better seen, perhaps, as a metaphor for tightly constrained logical positivism wedded to text and rejecting of values and morality as part of the law and rules. This approach tends to decontextualize and place morality and values outside the legal structure as matters of personal choice – to be eschewed by the judge in strict legal technique administering a self-contained and self-referential construct of rules free of personal idiosyncrasy and choice.

But the law – common law, equity and statute is anchored in, entwined by, infused with and faithful to fundamental moral notions and values: a rejection of unfairness, an insistence on essential equality, respect for the dignity of the individual, the rejection of unreasonable exercise of public power beyond its legitimate democratic source, the rejection of unconscionable private power beyond society’s relational norms of decency, and a humanity that informs mercy and a sense of justice.

All these are values and morals; all must be approached with the necessary restraint and respect for other repositories of lawful power, using judicial technique, not mere declaratory fiat.

But all involve choice during the application of judicial technique – choice, which is contestable.

Since the Middle Ages, the common law and equity (and Parliament) have set their faces against unconscionable use of penal bonds and penalties in private commercial behaviour. Since the same time, the underlying guiding motif of equity has been the restraint of unconscionable conduct and the rejection of predation of the powerful over the weak and disadvantaged.

The different techniques of different judges often reflect a difference in the solving of a particular problem between a preference for taxonomically organised defined rules to be applied by construction of words, and a preference for principle more openly or broadly expressed by reference to values to be applied by characterisation.

As the important English moral philosopher of the second half of the 20th century, Mary Midgley, once said, “human thinking has two movements. There is the abstracting, critical process, which has always been recognised as thinking: and there is another process of imaginative comprehension, of comparing and balancing…”.[7] To similar effect, last year, I discussed in an address to the Australian Academy of Law[8] the work of British neuroscienti, practising psychiatrist and polymath Dr Iain McGilchrist about how our bi-hemispheric brains approach all problems abstractly and deconstructed (by the left hemisphere) and relationally and wholly (by the right hemisphere). Midgley’s two movements and the bi-hemispheric approach to legal problems are vital for the law and its healthy development and application. The imaginative comprehension of comparing and balancing or the balance of abstracted deconstruction and definition, and of relational wholeness ties abstract thought to practical human reality in the resolution of concrete problems.

Public power is restrained by the need for fairness in its exercise. Such is an irreducible requirement in judicial power. Aristotle’s Nicomachean Ethics is as relevant to the common law principle of parity in criminal sentencing (Green and Quinn[9]) and to understanding the very nature of equity, as it is to moral philosophy and ethics.

It is no accident that the horrors of the 20th century spawned or encouraged a desire to move away from the intrinsically human, in the face of the capacity for evil of the human, to urge that philosophy (and law) were separate from morals (which were personal), whether manifesting in some forms of logical positivism or in existentialism.

But the same horrors also encouraged a revival in moral philosophy and an insistence on objective good of some values common to all sentient beings that give us a larger ethical and metaphysical structure, without which we become disorientated.

Any examination of the common law and equity sees rule, principle, human values or morals deeply intertwined. This is no more powerfully expressed than in the fibre of the criminal law. A great lawyer and brave soldier, Sir Victor Windeyer said, in the context of statutory construction in the context of mandatory sentencing in Cobiac v Liddy: It is that a capacity in special circumstances to avoid the rigidity of the law is the very essence of justice.[10] This is so because mercy is a mark of equality, dignity and fairness encapsulated in the human response to wrong, to the individual, and to life itself that raises and enhances the humanity of the grantor and grantee. In so expressing himself Sir Victor echoed what Aristotle said in The Nicomachean Ethics , that the nature of equity was the correction of the universality of the law.

But judicial technique owes its legitimacy to the disinterested and fair expression of meaning and rule from text and context born of the right focal length of appreciation and of an understanding of the relevant values to be brought to bear on the problem.

Law is not just command or rule: It is societal will amenable to rational and general expression, engendering loyalty and consent through its utility and practicality and through its characteristics of requisite certainty and fairness and justice, recognised as taking its place in the protection of the individual and of society.

No system of law can engender loyalty and consent without an inhering justice – some intuitive response from acceptable and accepted values, not necessarily by reference to each individual provision within the system, but by reference to its whole, including its defects and its shining examples. Each gives content to the whole. Nothing is perfect. Further, no system of law can engender a sense of security without an acceptable degree of certainty. The need for balance of, and the inevitable complexity of the relationship between, rules, values, certainty and justice and their interconnectedness should be recognised as a central feature of the law and the administration of justice. There is no point pretending that such complexity can be addressed by eliminating values and textually expressing more or simple rules. That process is just to create other values, and likely darker ones, masquerading as rules.

We should accept that any system of law worthy of being called just must be founded on fundamental values. Part of that acceptance is the recognition that sometimes rules can only be expressed by reference to values or general concepts and cannot (unless incoherence is to be courted) be reduced to abstractly expressed defined propositions. We live with this every day; we are familiar and comfortable with rules that lack case-specific precision, but which have meaningful content, and which provide for acceptable, if contestable, application: for example, the common sense and evaluative conclusion of causation depending upon the question being asked or the relevant rule of responsibility; the requirement of subjective and objective honesty; the requirement of a reasonable time for conduct in all the circumstances in various situations; the expectation of a reasonable response to risk created by one’s own conduct when concepts of duty of care are examined. Essential to our being comfortable with these rules expressed by reference to values or general concepts is the existence of a stable contextual framework and a relevantly organised body of values (explicit or implicit) for the resolution of the question.

In a remarkable address to the law students in Boston in 1897,[11] Oliver Wendell Holmes, then a judge of the Supreme Judicial Court of Massachusetts, spoke of the infinity of law from its timeless, but human, character. Holmes could sometimes seem brutal in his expression, but he saw a form of beauty in the law from the place of theory and humanity intertwined. If this beauty exists, it does not come from the sounds of tongues, talking of grand ideas, so often making them seem physical, limited and prosaic by superficial language, taxonomical arrangement and metallic repetition. Rather, it is in the daily application of life that the dignity of the individual, the mercy of the soul, and fairness as part of the human condition inform the exercise of lawful power. In life’s small, selfish and mundane intersections, these values assume a daily modesty in expression, and in context. But that modesty in expression and in context reaches back towards essential humanity and towards what Holmes referred to as the echo of the infinite and a hint of the universal law. [12] This human beauty of the law (if it be beauty) does not come from grand expression, but from modest application to the humans in question, to the conflicts in resolution, to the pages of the lives of people – in fairness required, in dignity expressed and accepted, and in mercy given.

[1] Chief Justice Allsop of the Federal Court. Speech delivered for the Twelfth Sir Harry Gibbs Memorial Oration at the 32nd Annual Conference of the Samuel Griffith Society in Sydney.

[2] Seidentop, L Inventing the Individual: The Origins of Western Liberalism (Allen Lane 2014) esp Ch 5

[3] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

[4] Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

[5] Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1.

[6] 198 US 45 (1905).

[7] Mary Midgley “A Letter to Posterity” The Listener 27 March 1952 at 510, cited in Benjamin Lipscomb The Women are up to Something (Oxford University Press 2022) at 213.

[8] James Allsop ‘Thinking about Law: The importance of how we attend and of context’ (Speech, Australian Academy of Law Tenth Annual Patron’s Address, 21 October 2021).

[9] Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.

[10] Cobiac v Liddy (1969) 119 CLR 257, 269.

[11] The Path of the Law in Collected Legal Papers of Oliver Wendell Holmes (Constable and Company London 1920) at pp166-202 see also Harvard Law Review Vol X at 457

[12] Op cit at 202