Introduction:-

It goes back to the time, when, in 1701, William of England was dying, childless, and concerns in England were renewed along with the assertions of the Stuart line. In order to insure that there was an indisturbable force that might be brought against any intolerable act of a king, a new act of succession was laid before the house which provided for the independence of the judiciary: no judge should be removed from office save on an address from parliament to the crown.1 There was, thereafter, to be a system of judicial proceedings, which, in the trial of causes, would secure through caution, deliberation, and thorough investigation; and, as far as possible, would be free from every influence but the simple desire to do justice. It was to be a system to be run by ordinary men and women. A system which entrusts itself to specialists but only to the extent of being depositaries of as much general, balanced and uniformed common sense as can be mustered.

Justice Peter Cory of the Supreme Court of Canada:

"Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfillment of a life's dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high."2

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Justice:-

First and foremost and to be born in mind at all times, is Lord Hewart's admonition; "It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."3 It is, as Whittier wrote in his Mantle of St. John, "The hope of all who suffer, The dread of all who wrong."

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Twin Pillars:-

"The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it.
They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts, and they are governed by separate considerations.
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him; and then he must be given a fair opportunity to correct or contradict them ...
It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations will work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing."4

The Humean View:-

Hume thought that the "grammar of justice could be captured in three rules: the stability of possessions, their transference by consent, and the performance of promises. Incidently -- need, merit, desert, or equality are not to be taken as defining characteristics of justice. To the extent that anybody says they are then they must be corrected by reminding them that such concepts "are either impracticable [scarce goods and limited benevolence] or are incompatible with even the minimum amount of liberty that mankind can be expected to require."5

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Judges:-

It is difficult to deal with judges without reference to the common law; and, visa versa. Judges play an important and an integral part in the common law system as it has evolved. In the common law system a judge is first called upon to find the law (with help of advice), to interpret it, to articulate it, and then to apply it to the fact situation presented in the court room.6 It is the first two steps under the common law, to find the law (with help of advice), to interpret it, which is close to the business of making law.

To outline the fundamental differences between the legislator and the judge, I can do no better than to quote Bruno Leoni:

"First, judges or lawyers or others in a similar position are to intervene only when they are asked to do so by the people concerned, and their decision is to be reached and become effective, at least in civil matters, only through a continuous collaboration of the parties themselves and within its limits. Second, the decision of judges is to be effective mainly in regard to the parties to the dispute, only occasionally in regard to third persons, and practically never in regard to people who have no connection with the parties concerned. Third, such decisions on the part of judges and lawyers are very rarely to be reached without reference to the decisions of other judges and lawyers in similar cases and are therefore to be in indirect collaboration with all other parties concerned, both past and present.
"All this means that the authors of these decisions have no real power over other citizens beyond [that which] citizens themselves are prepared to give them by virtue of requesting a decision in a particular case.
"It means also that this very power is further limited by the unavoidable reference of every decision to decisions issued in similar cases by other judges. Finally, it means that the whole process can be described as a sort of vast, continuous, and chiefly spontaneous collaboration between the judges and the judged in order to discover what the people's will is in a series of definite instances - a collaboration that in many respects may be compared to that existing among all the participants in a free market."7

Judicial Duty:-

To interpret the law, not to make it.

"Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." (Francis Bacon.)

"Everyone who has a case in court is entitled, we believe, to be represented by a lawyer who, within the law and the code of professional practice, is expected to be the partisan and advocate of his client. But this presupposes not only that his opponent will be effectively represented too, but that the case will go to a court where the judge is not an advocate and has no clients. The judge is bound by his judicial vows."8 (Walter Lippmann.)

"It is the province of the judge to expound the law only - the written from the statute, the unwritten or common law from the decisions of our predecessors of our existing courts - from the text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference - not to speculate upon what is the best, in his opinion, for the advantage of the community."9

"The judge weighs the arguments and puts a brave face on the matter, and since there must be a decision, decides as he can, and hopes he has done justice." (Emerson.)

To Be Fair and Impartial; and -- To Appear So:-

Justice Peter Cory:

" A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society.
It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them. ... In order to fulfil this duty the decision-maker must be and appear to be unbiased. The scope of this duty and the rigour with which it is applied will vary with the nature of the tribunal in question.
... The right to trial by an impartial tribunal has been expressly enshrined by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
Trial judges in Canada exercise wide powers. They enjoy judicial independence, security of tenure and financial security. Most importantly, they enjoy the respect of the vast majority of Canadians. That respect has been earned by their ability to conduct trials fairly and impartially. These qualities are of fundamental importance to our society and to members of the judiciary. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair....
It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct."10

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On Taking Evidence:-

It is the role of the judge to assess the evidence adduced in the court room. In the process, it requires some discipline to shut out past experiences and general observations and to bring the judicial sieve and sheers to only the evidence that was brought before the court. He will have to be particularly careful to be, and to appear to be, neutral. When it is necessary to make a determination of credibility, a judge is obliged, as Justice Cory, put it, "to walk a delicate line":

"On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence.
"When making findings of credibility it is obviously preferable for a judge to avoid making any comment that might suggest that the determination of credibility is based on generalizations rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. It is true that judges do not have to remain passive, or to divest themselves of all their experience which assists them in their judicial fact finding. [References given.] Yet judges have wide authority and their public utterances are closely scrutinized. Neither the parties nor the informed and reasonable observer should be led to believe by the comments of the judge that decisions are indeed being made based on generalizations.
"At the commencement of their testimony all witnesses should be treated equally without regard to their race, religion, nationality, gender, occupation or other characteristics. It is only after an individual witness has been tested and assessed that findings of credibility can be made. Obviously the evidence of a policeman, or any other category of witness, cannot be automatically preferred to that of accused persons, any more than the testimony of blue eyed witnesses can be preferred to those with gray eyes. That must be the general rule. In particular, any judicial indication that police evidence is always to be preferred to that of a black accused person would lead the reasonable and knowledgeable observer to conclude that there was a reasonable apprehension of bias."12

Objectivity:-

The quality or character of being objective, viz., to be focused on external realities versus one's own unsupported internal views, is of fundamental importance to the judge. A judge is to maintain, and project at all times, a sense of objectivity. In an absolute since, however, such objectivity is an impossibility! Judges, like all other humans, are obliged to operate from their own perspectives.

Cardozo:

"There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. ... In this mental background every problem finds it setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. ...
Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [he or she] be litigant or judge."13

Judicial Writing:-

Cardozo, again:

"As I search the archives of my memory, I seem to discern six types or methods [of judicial writing] which divide themselves from one another with measurable distinctness. There is the type magisterial or imperative; the type laconic or sententious; the type conversational or homely; the type refined or artificial, smelling of the lamp, verging at times upon preciosity or euphuism; the type demonstrative or persuasive; and finally the type tonsorial or agglutinative, so called from the shears and the pastepot which are its implements and emblem."14

Preciosity:-
- Extreme meticulousness or overrefinement.

Euphuism:-
- An affectedly elegant literary style, characterized by elaborate alliteration, antitheses, and similes; affected language.

Tonsorial:-
- Of or pertaining to a barber or to barbering.

Agglutination:-
- The process of agglutinating; adhesion of distinct parts; In linguistics, the formation of words from morphemes that retain their original forms and meanings with little change during the combination process.

Morpheme:-
- The smallest meaningful morphological unit of language, one that cannot be analysed into smaller forms.

Stare Decisis:-

Brandeis:

"Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."15

"What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly to be sacrificed. Above all is this true when honest men have shaped their conduct on the faith of the pronouncement."16

On Speaking Out:-

If a person likes to take philosophical positions and to speak out and express general opinions; then, likely that person is going to have a difficult time being a judge. While, it is the very work of a judge to take a position and express an opinion, such ought only to be done on matters sub judice in his or her court room; and, even then, the rule, it seems to me, is to make no observations during the trial, nor to make any unnecessary observations in the course of one's decision.

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QUOTES:-

Criticism v. Contempt:-
¶ "Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat it as contempt of court." (Russell of Killowen, lord chief justice, Regina v Gray, 1900.)
¶ "Courts and judges are not, and should not be, above criticism, and as long as they are not impeded in the conduct of judicial business by publications having the effect of obstructing enforcement of their orders and judgments, or of impairing the justice and impartiality of verdicts, there is no right to enforce a contempt proceeding." (Chief Justice Hughes, State v. Don Nixon, 1935.)

Guilt:-
¶ "The sword of the law should never fall but on those whose guilt is so apparent as to be pronounced by their friends as well as foes." (Thomas Jefferson, 1801.)

Interpretation, The Difficulty:-
¶ "'Trampled under the hoofs of a contest between old indifference and an arrogant, merciless will to reform." (G. M. Trevelyan.)

Light, Not Heat:-
¶ "One cool judgment is worth a thousand hasty counsels. The thing to do is to supply light and not heat." (Woodrow Wilson, 1916.)

Justice:-
¶ "Justice is a contract of expediency, entered upon to prevent men harming or being harmed." (Epicurus.)
¶ "The aim of justice is to give everyone his due." (Cicero.)
¶ "We will deny justice to none, nor delay it." (Magna Carta.)
¶ "Justice is a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him." (Thomas Aquinas.)
¶ "Justice is found, experimentally, to be most effectually promoted by the opposite efforts of practised and ingenious men presenting to the selection of an impartial judge the best arguments for the establishment and explanation of the truth." ("The Lawyer That Tempted Christ," Sydney Smith.)

Justice to the Accuser, Too:-
¶ "Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." (Justice Cardozo, Snider v. Commonwealth of Massachusetts, 1934.)

Justice and Freedom:-
¶ "The root of all well-ordered social action is a sentiment of justice, which at once insists on personal freedom and is solicitous for the like freedom of others; and there at present exists but a very inadequate amount of this sentiment." (Spencer.)

Justice and Property Rights:-
¶ "Where there is no property there is no justice." (John Locke.)

Justice and the Love of It.:-
¶ "The love of justice in most men is simply the fear of suffering injustice." (Rochefoucauld, Maxim 78.)

Justice is Truth.:-
¶ Veritas est justitiae mater - Truth is the mother of justice. (Legal maxim.)

Mercy:-
¶ "He injures the good who spares the bad." (Publilius Syrus, c.50 B.C.)

Retribution:-
¶ Injuria non excusat injuriam - One wrong does not justify another. (Legal maxim.)

Above Suspicion:-
¶ "Judges, like Cæsar's wife, should be above suspicion." (Bowen, J.; Leeson v. the General Council of Medical Education, 1889.)

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NOTES:

¹ Green, vol. IX, p. 96. Another principle established by the Succession Act, is, that the king acts only through his ministers, and that these ministers are responsible to parliament.

² R. v. R.D.S. (1997) SCC, para. 56.

³ King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259.

⁴ Kanda v. Malaya, [1962] A.C. 322, 337.

⁵ "Hayek as Humean" by Donald W. Livingston, Critical Review, vol. 5, no. 2, Spring, 1991.

⁶ With legislated law, -- legislation being another topic -- the judge need not, at least theoretically, deal the first step, as described.

⁷ Leoni, Freedom and the Law, p. 22.

⁸ The Public Philosophy, at p. 53.

⁹ Lord Justice Coleridge; Brownlow v. Egerton, 1854.

¹⁰ Cory, J.; R. v. R.D.S. (1997) SCC, paras. 31-4, 58.)

¹¹ Commentaries on Judicial Conduct (1991), at p. 12. In a speech given by Robert G. Ingersoll, a successful 19th century lawyer who was to become the attorney-general of Illinois, said, "We must remember that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased.

¹² Cory, J.; R. v. R.D.S. (1997) SCC, paras. 69-71.

¹³ The Nature of the Judicial Process (1921), at pp. 12-13, and 167, as quoted by the Supreme Court of Canada, R. v. R.D.S. (1997), 161 N.S.R.(2d) 241 (SCC), para. 108.

¹⁴ Law and Literature [1931].)

¹⁵ Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 406 [1932].

¹⁶ The Paradoxes of Legal Science [1928].