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Law works within darkened understanding


The Australian legal system appears to be under stress. More is asked of it, and it is cut less slack. The family courts are crowded as cases are often bitterly fought and protracted as clients and lawyers resist negotiation. Magistrates complain of heavy workloads that leave no space for reflection. 

Statue of blindfolded Lady Justice holding scales and a sword (William Cho/Pixabay)At the same time judicial discretion is increasingly restricted by mandatory sentencing and limitations in access to bail and remand. Politicians, including attorneys general, are quick to criticise judicial decisions with which they disagree. Social media has increasingly assumed a judicial function of naming and punishing offenders, and victims of crime demand a more central say in sentencing.

Debate about the independence and the dignity of the law has always been present. Nevertheless most societies take pains to reinforce trust in those who administer justice. Some elements in our culture, however, put that trust at risk. They deserve reflection.

It is customary for rulers to exalt the law and its processes and for those caught up in its practice criticise it. Many historians have seen the law as the great achievement of the Roman Empire, and have credited the British with bestowing on its colonies a great gift in the English legal system. The dignity of the Law is symbolised in solemn court rituals and dress, in the state honours that judges have routinely received, and in the practice of conferring on retired judges the responsibility for Government enquiries.

Critics, however, have always scratched away at the mystique of the law by exposing the venality, pretensions and incompetence of its administration. Colonial research, court dramas, novels and levelling movements in society have all set out to expose the clay feet on which the statues of lawgivers rested.

St Augustine was one of the most incisive social critics in the ancient world. He contrasted the glorious public image of Roman institutions and their representatives with their messy human reality. In his time judges could order complainants, defendants and witnesses to be tortured in civil cases when necessary to establish the truth of their evidence. He argued that the harm done to the victims of torture by the judge’s decision to impose it was certain, but that both the confessions gained through it, and the protestations of innocence maintained despite it, were uncertain testimonies of truth. And yet, although judges remained in their ignorance after resorting to torture, they continued routinely to rely on it. Augustine remarks:

‘The wise judge does not act in this way through a will to do harm, but because ignorance is unavoidable — and yet the exigences of human society make judgment also unavoidable. Here we have the wretchedness of the human situation, even if it is not to be called the wickedness of the wise man in his judicial capacity.’

He concludes that judges should be pitied, not admired, for the necessary service they undertook for the good of their society. They are trapped in their necessities. But it was precisely the exigences of society that led people to shrink from Augustine’s cold focus on the wretchedness of the human situation. It made them exalt judges and their capabilities. They found that trust in the ability of judges to discover the truth, accompanied by increasingly elaborate systems of review, was needed in an ordered society.


"In a culture that craves certainty, whatever goes wrong is always someone’s fault. Litigation flourishes. Litigants, secure in their own certainties, do not negotiate but demand that the judge condemns and punishes the guilty parties whom they have already identified."


Trust in judges’ capacity to discover the truth can coexist with the recognition that they will sometimes make mistakes. But it will not long coexist with the expectation that they infallibly discover the truth. In a culture in which there is a demand for certainty, as is arguably our own culture, fallible judgments and judges are not acceptable. The quest for certainty engenders a demand for mechanical solutions driven by quantifiable data. Punishment must exactly match the crime, without allowing for such immeasurable matters as motivation, possibility of reform and circumstance.

The search for certainty also leads us to define by their crimes the persons who offend, and to assume that they will always be so defined. A person who robs a bank will be a bank robber for the rest of their life and so a risk to the community. If this is so, it becomes foolish to remand them before trial or to give them bail. We can never be certain that they will not reoffend.

In a culture that craves certainty, whatever goes wrong is always someone’s fault. Litigation flourishes. Litigants, secure in their own certainties, do not negotiate but demand that the judge condemns and punishes the guilty parties whom they have already identified. If the judicial system fails them they will seek judgment through social media.

Although our own society is certainly not a dystopia where everyone shares these attitudes, the demand for certainty in judgment does put at risk trust in the law. Law presupposes a community of fallible human beings capable of acting wrongly, capable of change, uncertain in judgment and prey to circumstance. Justice is ideally blind in the sense that it is unbiased. It is also necessarily blind also in the sense that both those making decisions and those for whom they make them work with darkened understanding. Trust is built finally on mutual love and not on certainty.


Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.


Main image: Statue of blindfolded Lady Justice holding scales and a sword (William Cho/Pixabay)

Topic tags: Andrew Hamilton, law, courts, truth



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Existing comments

Solomon asked God not for riches but understanding to discern judgment. And God was pleased with this request. As a result of his wisdom, Solomon did accumulate riches and fame and we all know what eventually happened. I believe the need for certainty in the law by wounded people is the powerlessness they feel in the face of trauma. It's difficult to empathise with others who have deeply hurt you. The law also gives structure to society. Perhaps St Paul's writing on love should be read out in courts of law (as well as marriage ceremonies).

Pam | 22 November 2018  

Andy's article is a vital reminder of what should motivate the processes of the law. I would also suggest that it points to a related issue. The idea that law is neutral or impartial has its dangers, not just in the demand for infallibility, but also in creating the illusion that law is somehow value-neutral. "It is the law" is not an answer to the question of why we should refuse protection to the most desperate, for example. Likewise, notions of property rights or the weighing of interests between employer and employee which are embodied in law are not immutable truths. The law speaks to the values of the society which lives by it. Where those values are not founded in mutual love, the law will always be more or less dysfunctional.

Justin Glyn SJ | 22 November 2018  

The Law has become a major instrument in the decline and impending demise of Christian Western Civilisation and this Godforsaken country is one of the legislative demolition specialists engaged in the task.

john frawley | 22 November 2018  

Interesting but the law is simply unaffordable to 90% of the populace. The quality of the judiciary is important but irrelevant if you have no resort to it.

Steve Carey | 22 November 2018  

Profound comments Fr Andrew. All the courts are overburdened. The lists long, the delays interminable. The magistrates courts are seemingly biased in favour of the police. The Supreme Court often out of reach to the impecunious litigant. And you are right about blame. I worked for an ambulance chasing lawyer once who had the shrill motto of: "Where there's blame, there's a claim". Not a fellow to remember fondly. But law is enshrined in our democracy. Its expensive though necessary and often reserved judgements take many months to issue. As for infallibility, that's an issue reserved for Popes advised by scarlet hats of questionable motivation and occasional dubious integrity. Luke 18 "there was a widow in that city; and she came to him, saying,‘Get justice for me from my adversary.’ And he would not for a while; but afterward he said within himself, ‘Though I do not fear God nor regard man, yet because this widow troubles me I will avenge her, lest by her continual coming she weary me.’ ” And again "Laws are like cobwebs that may catch small flies, but let wasps and hornets break through". (Jonathon Swift).

Frank Armstrong | 28 November 2018  

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