Allsop, Justice James --- "Being a judge: Judicial technique, independence and labels" (FCA) [2022] FedJSchol 9

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.

aEURoeBlack letter lawaEUR 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 aEUR" 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 aEUR" 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 societyaEURtms 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 aEUR" 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 20^th century, Mary Midgley, once said, aEURoehuman 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 balancingaEUR|aEUR.^[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). MidgleyaEURtms 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. AristotleaEURtms Nicomachean Ethics is as relevant to the common law principle of parity in criminal sentencing (Green and Quinn) 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 20^th 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 aEUR" 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 oneaEURtms 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 lifeaEURtms 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 aEUR" 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 32^nd 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] HCA 24; (1996) 189 CLR 51.

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

^[5] Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1.

^[7] Mary Midgley aEURoeA Letter to PosterityaEUR 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 aEUR~Thinking about Law: The importance of how we attend and of contextaEURtm (Speech, Australian Academy of Law Tenth Annual PatronaEURtms Address, 21 October 2021).

^[9] Green v The Queen; Quinn v The Queen [2011] HCA 49; (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

Federal Judicial Scholarship

Allsop, Justice James --- "Being a judge: Judicial technique, independence and labels" (FCA) [2022] FedJSchol 9