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Jamieson, Nigel --- "The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles, by E W Thomas" [2007] OtaLawRw 15; (2007) 11 Otago Law Review 539

The Judicial Process:

Realism, Pragmatism, Practical Reasoning and Principles

(by E W Thomas, Cambridge University Press, 2005)

One is entitled to approach this book on The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles with high expectations since here is the recipient of the J F Northey Annual Law Book Award for 2005 as administered by the Legal Research Foundation of New Zealand[1] .

Much of The Judicial Process amplifies the juridical author ’s earlier Return to Principle in Judicial Reasoning[2] . “Self-plagiarism”, so the author stonewalls (p xvii) “is not plagiarism at all”. That is true – any academic who has used his previous research as a springboard for further research is faced with either paraphrasing what he has already researched or else (since citations now count as academic credits[3] ) self-promoting his earlier work with his own citation. Yet anyone who has tried to source a lost quotation, say from the work of Bertrand Russell, may be surprised at the degree of repetitiousness pervading the style and substance of a prolific writer ’s works[4]. So too, if that were plagiarism, then the Holy Spirit and the Word of God would be full of it. One key to the prevailing amplitude of this literary overlap arises where – to use the juridical author ’s phrase (p xvii) – “core beliefs are firmly held”. With these determinedly held “core beliefs” the juridical author builds a bridge between his earlier Return to Principle and the present Judicial Process.

“Core beliefs” (like a two-edged sword) can nevertheless cut two ways. Lawrence Sterne (mocking the epistolary artifice of Richardson’s Pamela and the step-by-step adventures of lawyer-turned-journalist Henry Fielding’s Tom Jones) made great fun of “core beliefs” with his character of Uncle Toby in the novel Tristram Shandy[5] . As for any Uncle Toby (not inconsequentially obsessed by that hurt in the wars which prevents his riding real horses), “core beliefs” become repetitiously ridden hobby-horses.

Whether the great bulk of The Judicial Process “is new – if not novel”, as the author claims (p xvii), is secondary to the seriousness of the author ’s “core beliefs”. These, when “firmly held” by any “Acting Judge of the newly established Supreme Court of New Zealand” (frontispiece), are bound to be treated with all due seriousness. Here is a case, as with any ex curial utterance of the judiciary, in which judicial status needs be carefully weighed in the academic balance against that freedom of contract (unless such freedom be incommensurate with judicial status) with which any judge communicates his own “firmly held core beliefs”.

With any author ’s second treatise, there is no reason against his resiling from the first. As Sir John Eccles wrote[6] in resiling from the work that had won him the Nobel Prize, “I can now rejoice even in the falsification of a cherished theory, because even this is a scientific success.” The Eccles case, a leading one in the history of science as lawyers engaged in the science of law[7] may care to call it, unsurprisingly confirms Sir Karl Popper ’s view of science as a series of Conjectures and Refutations[8] . Of those who support the decision in the Eccles case, at least as many feel that Sir John deserved the Nobel Prize (twice over) as those who feel that the original award should have been taken away from him. The history of science demonstrates by more than this one instance that the science of law is not unique among the sciences in disputing over what holds good in argument for being absolute and incontrovertible.

The same interdisciplinary cross-reference from natural to legal science also dampens any jurisprudential aspiration that the terms of reference so far devised for the debate over judicial activism are capable of allowing any categorical or absolute resolution of the debate. Those who look for truth by means of proof (rather than encouraging the willing suspension of disbelief through the creative arts) will expect an objectively neutral enquiry conducted according to the conventions of closely reasoned argument. Yet the author of The Judicial Process does not begin in the same neutral vein as de Tocqueville[9] did, “by pointing out … what a great number of readers [would] consider the capital defect in [his] work [for being] not precisely in anyone’s camp [nor] to serve or contest any party …” For the sake of this same neutral vein, de Tocqueville chose “rather [for himself] to see further than the parties; and while they are occupied with the next day, [his wanting] to ponder the future”.

Very differently from de Toqueville’s standard of scholarship (by which his Democracy in America, despite the toughness of its subject, became a classic) and for a number of other reasons shortly to be raised in this review, The Judicial Process lacks this scholastic neutrality. The Judicial Process, like its predecessor A Return to Principle, is clearly a party-piece. It upholds what others might deplore by way of being judicial activism. Considering the judicial status of its author, an overly reverential response by the legal profession could render it immune from argument. That would be to mistake personal opinion (whether based on sociological considerations, legal theory, or a sense of fairness) for legal reasoning. In the interests of an independent judiciary, academics can so easily build a protective fence around the judges[10] who, claiming to break the rules by reason of their making the rules, put themselves above and beyond the reach of legal argument. Whatever criticism thereafter befalls the judiciary is dismissed as being an “opinion piece”.

Serious scholarship, which accounts for de Tocqueville keeping clear of factional and party disputes to account for Democracy in America, cautions against the restiveness which tends to afflict radical enquiry. This “restiveness in the midst of well-being … in which law or custom no longer keeps anyone in his place … as precedents have little empire and laws little duration, [and in which] resistance to novelties is weak and the social body never appears very upright or quite firm in its seat”, de Tocqueville found symptomatic of USA as a democracy[11] . It may be no accident, therefore, that the exceptionally restive author of The Judicial Process, like so many other New Zealand judges and legal academics, has fallen victim to the American Law School[12] . We are apt to elevate and exaggerate the factional interests of these law schools out of all proper proportion to their transcendent values. These transcendent values of Anglo- American jurisprudence (transcending the acrimonious law school approach of their embattled factions) come the closest as yet to providing some jurisprudentia perennis[13]. It would be a severe loss to jurisprudence to see this jurisprudentia perennis strangled at birth by so-called realists, so-called pragmatists, and so- called positivists among the competing law schools.

The Judicial Process predicts (paradoxically) that as a result of its author ’s “new methodology”, “the past” will no longer “predict the future” (p xvi). On the contrary, “principles and not precedent”, will dominate “judicial reasoning” (ibid). All this has an air of Marxist inexorability. If such restiveness of spirit and intellect results in immoderation, then to decide affairs according to “this day and age”, or even ideologically in terms of trans-national, supranational, or global law, is the language of immoderation. This leaves little likelihood of resolving the issues as if there were any firm framework of legal system by which to evaluate the outcome. The most that any neutral reviewer can do is to ensure that one faction, call it what you will, does not subvert, manipulate, or take undue advantage over the other. Status can give way to contract – but not, under any known legal system, to chaos.

E W Thomas, formerly a judge of the High Court, and latterly of the Appeal Court of New Zealand, and now in his quoting Bickel[14] and being nowise retired from academic research with the publication of his present Judicial Process, first published his preparatory Return to Principle in Judicial Reasoning and an Acclamation of Judicial Autonomy as a paged monograph[15] in 1993. Subsequent papers, book chapters, and lectures indicating his continued progression of thought aside (these are noted in his footnote 5 at page xvi), his core beliefs remain much the same as in his earlier monograph.

For the sake of those readers[16] – and there may be many academics among them – who mistake any mere dissertation for a thesis and any thesis for a mere dissertation (since the scholarly onus of proving a thesis far transcends whatever leisurely wandering through, discursive review, and personal exploration of a subject may satisfy a dissertation) it must be said that the subject of this earlier monograph, as of its later treatise, most certainly requires a thesis. Any departure from the doctrine of precedent, especially that expressed in the Common Law context of stare decisis – and more especially when recalled more fully as stare decisis et non quieta movere – is fundamental to the Common Law. It is so fundamental to the Common Law as to be immune from being whittled down by any mere dissertation[17] . In Hegelian terms, the thesis by which there should be less attention paid to precedent in the judicial process must first be proved, its antithesis must then be disproved, and a credible and persuasive synthesis afforded by these two means of proof by which to establish the thesis. To credit this being done by any mere dissertation is in itself a fallacy of academic argument.

Since this issue of stare decisis is going to remain the pivotal issue throughout the entirety of Thomas’ 414-paged book on The Judicial Process, some neutral account might be expected of stare decisis according to its accustomed terms of reference. What is meant by stare decisis? Literally translated (which needs be from its Latin for at least first-year students) the expression means “to stand by things decided”. In terms of today’s “fusion fallacy” when no rule of law remains immune from some equitable attack of conscience, we might redefine it as “keeping faith with our own decisions”. Have we been so misled for centuries as to now find our Common Law lacking autochthony and rootless? Without some standard of objectivity, scholarship simply ceases to exist. Yet in company with many of today’s critical legal theorists, Thomas swings foremost into the attack, so breaking the scholarly convention (if not also the laws of warfare) by which some attempt needs be made to qualify the target for attack as neutrally as possible in terms of not only justifying its attack but also explaining itsexistence.

Some deep acknowledgement of the status quo of precedent is needful – even just for any move to contract out of it. Thomas does not give this deep acknowledgement with the transparency he claims of many other matters (among them, the realms of choice, precedent, legal theory, judicial reasoning, and his new methodology) but prefers instead to prejudge the judiciary (in terms that weaker undergraduates will simply love to quote) of its “muddling along” with an “unquestioning acceptance of positivism and a rulish [perhaps better rule- ish] disposition”. He does make some attempt to acknowledge what he scoffingly calls “the piety of precedent” but this only to show both the falsity of that piety and the foibles of precedent. Whatever he relates by way of text to the advantage of precedent and stare decisis, is almost always given in a blighted context.

What more need be meant then by stare decisis in response to what is often no more than a rebellious diatribe against the heart and soul of the Common Law? The legal academic, unless he follows suit and therefore trails after the judicial activist, is always going to be disadvantaged by non-legal argument. If the House of Lords in 1966 chooses to declare, as just by Practice Note, that it is no longer disposed to be bound by its own decisions, what can any legal academic do about this by way of legal reasoning except to cry “foul” and bemoan what could become a very bad precedent for breaking the rules. Black’s Law Dictionary, which Thomas quotes (p 143), is a little too Spartan. It is so Spartan when compared with standard jurisprudence texts such as Dias[18] or Allen[19] , as to be downright misleading in its equation of stare decisis with precedent as to say “To adhere to precedents, and not to unsettle things which are established.” As a little more extendedly paraphrased in Jowett’s Dictionary of English Law[20] , stare decis may be taken to mean:

To abide by former precedents where the same points come again in litigation, as well as to keep the scale of justice even and steady and not liable to waver with every judge’s opinion, as also because, the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent is now a permanent rule which it is not in the breast of any subsequent judge to alter or swerve from according to his private sentiments, he being sworn to determine, not according to his private judgment, but according to the known laws and customs of the land, not delegated to pronounce a new law, but to maintain and expound the old one, jus dicere et non jus dare.

This proposition seems pre-eminently one of principled and pragmatic common sense. How can realism and practical reasoning alter this centuries-old foundational grundnorm of the Common Law? Perhaps only in the same way as critical legal theorists, in company with other modernists[21] (and even more so post-modernists[22] ) “make people angry … leave an important hunger unsatisfied … burst into publication with manifestos, polemics, criticisms, labels, and words, words, words … demonstrate the characteristic failing of modernist work, when it fails, for being, not bad but fraudulent … and withhold, even from its modernist creator, every possibility beyond a doubt that it is a true and authentic work”.

As Thomas himself says (p 78), “Independence without impartiality is a wayward beast”. The thrust of the present treatise The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles, as may be gathered from its title, develops out of, rather than resiles from that of the earlier monograph. The twin load-bearing pillars of the earlier monograph – justice in the instant case, and the specific needs of society – still carry first call on any exercise of judicial responsibility. Judicial reasoning is to be released from “unnecessary and outdated dogmas”. The legal process will become “beholden to a realistic and modern conception of the rule of law.”[23] What are the results, both long and short term, likely to flow from this modernist manifesto?

The immediate result is this: that the present near-on 450-paged thesis (including 26 pages of seminal preface) in which conservatives might have hoped to read of its author reforming if not resiling from his earlier views, only compounds them. Those in favour of so-called judicial activism will congratulate their leader. Could it nevertheless be said of Thomas, as was once also book- reviewed of another stylistically similar academic[24] , that although “the bright modernity of his approach will be enviously deplored by his crustier colleagues” the work will “expend most of its ripples in the region of the academic doldrums”? Those who disfavour so-called judicial activism (especially those who project their own inertia) may consider their opponent obdurate if not also so misguided and at such odds with established legal method as to be beyond redemption. Where does the truth lie – as between the lax and lazy on the one hand, and on the other, the irritatingly restive activist – or, dare we say it, the two are one? To achieve one’s academic objectives at the expense of rigorous reasoning is the refuge of the lax and lazy.

In the long term, the result will be determined by the incongruity of law with activism. What is activism – especially “in this day and age” when hyperactivity is so often diagnosed as being a pathological condition? Consider the merits, whether in Romano-Dutch or in Romano-Scots or in Romano-Maori law of deciding in or on principle![25]Consider the merits of the case, as put by legal activists, carefully. Rather than search for some rigidly applicable precedent, is it not more relaxedly justiciable to call for “the principle underlying the case or cases cited in argument”[26] ?

The term “activism” (with any “ism” from “fundamentalism” to “absolutism” denoting an excessive and exaggerated commitment) is linguistically loaded by the opponents of judicial activism against the proponents of such activism; but most alternative expressions – such as Sir Henry Maine’s “judicial legislation”[27] or HLA Hart’s “judicial discretion”[28] – are similarly value-loaded. In the context of the present debate, everyone enjoined in the debate believes himself to know, at least as between the parties to the debate, what is meant by “judicial activism”. As a result of such self-sufficient, and perhaps even self-satisfying knowledge, such words as “formalism”, “legalism”, “realism”, and “pragmatism”, are apt to be used as were Soviet attempts at lawmaking by means of waving flags, shouting slogans, and waving banners. And yes, so can the same befall such alternative slogans as the “separation of powers” and the “rule of law” just as reasoning can succumb to rationalisation, and argument fall prey to intellectualism. The ugly result of banner-waving can be a jurisprudential shouting match; or else, at a different level, a war of conflicting claims – each pursued, whether as to the piety of precedent or the fusion of equity, or the non- exploitation of contract, according to his own brand of legal gnosticism.

It is not so clear to moderates, if any can remain unconsumed by the resulting conflagration over issues of the judicial process, to say where, in terms of legal history, legal system, and jurisprudence (not to mention those issues of constitutionality, sociology, and modernity currently being debated by the judiciary) the truth lies and where lines should be drawn. Since when and by what means could the judicial process ever claim a legislatively innovative and radically reformative function? The divisions of labour between the lawyer, judge, and jurist, together with the resultant specialisation of their functions, requires of them a mutual understanding of their differences. As pointed out by Bakshi[29]

The good lawyer brings to bear upon his work the retentive and analytical faculty of his mind. The good judge employs his power of observation of human conduct and his moral judgment, along with his knowledge of law. But the draftsman is really a creative artist, giving forms to ideas, embodying vague conceptions and mandates in concrete words, reducing proposals for social welfare or political up- lift or legal reform to black and white. It is more a synthetic process than an analytical one, though it does require an alert mind.

If judges hanker after creative instead of analytic work, they should re-tool (it will take five years re-training) as legislative draftsmen. But if they think to avoid the rigorously analytic by opting for the liberally synthetic process of legislative drafting, then they should be withheld from doing more mischief by way of their new undertaking. The paradox of lawmaking, as of any other creative endeavour, lies in this – that creativity requires more discipline than does critique.

Thomas would answer Bakshi by claiming (pp 25-27) the declaratory theory of law to be “discredited”, “collapsed”, and based on a “deception”. Who then has the custodial function of declaring and applying the law? If law is all to be freshly and innovatively created by the judges from day to day to suit each particular and instant case, then of law there will be no inkling – despite the exponential increase in litigation. The “core beliefs” of he who would have judges “accept that the declaratory theory of law is discredited, and [for them] to totally and consciously disown it” (p 27) pivots on an extremely personal, subjective, arbitrary, uncertain, disruptive, and discontinuous core-concept of law. As Thomas (p 184-214) gives the “shout from the rooftops” – “There is no impersonal law!” No wonder, then, that Thomas (p 217-239) is drawn to ask, “So, what is law?” To give Thomas and other legal activists their way, is to close down the legal system.

It is as if throughout The Judicial Process the bright shining thread of argument (and it does shine with an amazing brilliance) is being deflected in divertingly different directions through a series of prisms. Is this a conjuring trick? Quoting again from de Tocqueville on Democracy[30] it is noted that “when interests are opposed to reasonings, as in the legislative state of things, how bent become the rules of logic.” This conflict between democracy and judicial lawmaking explains why Jeremy Waldron features in The Judicial Process so prominently (pp 35-42) – as today’s chief opponent to universalising the whims of the judiciary.

The law-making legislature preoccupies itself with interests, whereas reasoning is the prerogative of the judiciary. If not in itself a constitutional move to take over the law-making functions of an interest-oriented legislature, is all of The Judicial Process then a clever spoof, a parody of post-modern jurisprudence, a cynical examplar of the way in which post-modern law teaching has substituted a plethora of legal theories and a no-holds-barred speculative approach to a professionally-founded yet intimately-experiential jurisprudence? Is seeing through the transparency of this extremely clever spoof what are we meant to find (pp 349-354) by first “taking law seriously” in turn to take Thomas seriously? By those who mistake a failing for a virtue, Thomas is drawing attention to a disease rampant in the Common Law.

Back in the times of Edward I – the English Justinian – it is true that even legislation adhered to a declaratory role. Surprisingly enough, most of that declaratory legislation – mortmain, de donis conditionalibus, in consimili causa – came to operate, whether by way of historical consequence, provoked response, or by scholarly misunderstanding, as innovative legislation. By Sir HenryMaine’s time[31] , legislative lawmaking had become identified, in strongly evolutionary and increasingly Darwinian terms, with social progress. Nevertheless, the division of labour and specialisation of function continues to be prescriptively implemented not only for jurisprudence and constitutional law by such doctrines as the separation of powers and the Rule of Law, but also by an increasing number of separate Ministries of State, State-Owned Enterprises, distinguishable Crown Entities, Commissioners for this and that, and any amount of Quangos as never before. Institutional separation – consequent upon the demise of the Crown – is the prevailing fact of legal life. Is Thomas then so right as to be convinced (p 77) that “political scientists have long since exposed the strict doctrine of the separation of powers as an illusion” – or, if this is a delusion of political science, then so much for political science (so-called) in its being deluded! That the separation be watertight, or be criticised for not being watertight denotes a formalist, legalist, rule-ish frame of mind. Some generic overlap, as with any “self-plagiarism” kept within reason, does not create a clone. Separation, among other things, may account for the origin of species, but that does not argue against different species sharing the same generic gene pool or their being bound into the same mutual or commensal struggle for survival.

What makes the judiciary, as de Tocqueville might euphemistically ask, so restive? If never before, and only now as so argued by its members in the interests of modernity and social progress[32] , this disparagement of Common Law traditions as being “solemn shibboleth[s]” that are “beguiling, but horribly platitudinous” (p 77), can only be justified, not by law, but in their being the rationale for political revolution. Which would be better construed (p 239), if we dare to understand Thomas correctly, to mean “the law as I [the judge] perceive it to be”(ibid). That the judges are in revolt against the legal system they are sworn to uphold “according to the law” – is far too strong a conclusion to consider before examining the historical, jurisprudential, and systemic data. If anything is needed initially to redress the value-loaded imbalance by way of achieving ideological parity in the debate, perhaps we should say the opponents of “judicial activism” are to be seen as supporting “judicial inactivism”. For the sake of the ensuing prize-fight, we would want both protagonists to belong to the same class on weighing-in, and, for the sake of a strenuous but fair fight, to be pretty equally matched.

Of course, all of this debate between rules and principles in Common Law can be explained with more impartiality by comparative lawyers at Roman Law[33] . There is nothing new – nothing novel to it. On the one hand, there are the Institutionalists, and on the other hand, there are the Pandectists. The Institutionalists rely on drawing divisions and making distinctions by which to systematize the law (invariably according to order and rule), whereas the Pandectists postulate general principles (purportedly derived from instant cases) and from which they draw specific deductions to apply to subsequent instant cases (but not necessarily according to any order or rule). Schultz[34] epitomises the Pandectist world outlook when he wryly remarks “In the beginning was the ‘case’”. This is a particulate, not even molecular view of the legal universe: the case gives rise to creation and not creation to the case: the particular to the general and back again to the particular (as being the only thing that really counts), rather than from the general (by way of some absolute, either real or hypothetical) to the particular. (The irony of our own time is that as we are called by Thomas and others to concentrate more and more on the particulate nature of our legal system and intensify the jurisprudential significance of the individual and instant case, natural scientists are abandoning particulate physics and taking up a string theory that resembles more the lawyer ’s concern for consistent and orderly lines of leading cases).

Thomas is a Pandectist, and so, like Cardozo, Denning, Cooke and like-minded modernists, is always fox-hunting (often long after the fox has gone to earth) and then digging into, as still he always does, to pursue the particular case. Unlike his anti-heroes of Glanvil, Bracton, Coke, and Blackstone, (to which may be added Maine, Maitland and Dicey as Institutionalists) many Pandectists (of whom Thomas may be one) risk mistaking a purely personal for a validly microscopic and meta-ordered view of the law. If you want to witness a modern instance of a mixed legal system at risk of being so strangely and perplexedly divided into Institutionalists and Pandectists, then consider some of the more controversial cases[35] that have arisen recently under Scots Law.

Much of what Thomas writes, ably supported by many fellow modernists – Parkinson who reduces centuries of equity to today’s prevailingly social concern just as Halliwell reduces equity to today’s namby-pamby morality and all around would-be jurists who are doing the same for contract, tort, and constitutional and criminal law, is at best but a superficial gloss on the legal system, and at worst the invasion of the social sciences – anthropology, sociology, ethics (unsurprisingly rejected by Waldron et al see Thomas pp 35-36) and psychology – to take over the administration of the legal system – without leaving any need for contract, tort, commercial, or constitutional law. Those who are convinced by this curtain of social science being drawn down (often by the judiciary) over established law, should re-read such cases, however difficult they may find that close-textual reading of the law to be, as Dering v The Earl of Winchilsea[36].

The Common Law has been described[37] as being “the most copious system of express rules known to the world”; and even, as with any legal system less reliant on rules[38] , authority flows from rule-making –

Authority is a rule-forming quality. It gives direction and has the power to induce those who acknowledge it to do or leave undone certain things; Thus authority has educational and governing functions. Its consequences are obedience, order, discipline; reasons for its dictates are not required, nor could many people check or understand them if given; stat pro ratione auctoritas.

Authority flows from rule-making. Behind the attempted thesis of Thomas to break down the rules, lies a strategy of modernist reductionism. Contract is reduced to economics through theories of non-exploitation, justice is reduced to morality through theories of “ameliorative justice”, rules of common law are reduced to principles of equity through the fusion fallacy, and law at large is reduced to a plethora of cases, none of which can be determined in advance by counsel but must be litigated and re-litigated through the courts. In the face of this exponential increase in litigation, it is ironic, to say the least, that Thomas as “an overworked judge at first instance … and a frantically overworked judge of an appellate court”, should open his book (p xv) with his quote from Bickel that judges should have the leisure of a scholar.

Despite (if not because of) this grand (if not grandiose) objective to supplant law with social science, Thomas projects not only a cynicism or disappointment with people, but also, in consequence, a prevailing suspicion of the legal process. For example, he writes (p 377) “In the fiduciary relationship, the beneficiary is uniquely susceptible to being unfairly disadvantaged”. Why so – it is, as recognised and protected by the law, a fiduciary relationship? A close study of the way in which the law of trusts developed out of human trust (and of the Chancery cases, which although in their being litigated tend to highlight fiduciary breakdowns) confirms this reviewer ’s faith, first in human relationships, and secondly in the surgical precision of the law.

Thomas, like many critical legal theorists[39] , conducts his case by perplexing his readers with antimonies. For example, “those who pursue certainty … do the law a disservice” (p 136); “the true antithesis in legal reasoning is the tension between formalism, on the one hand, and the approach that favours the reality and substance of an issue, on the other” (p xviii). Although opening his own antimonies in the legal system – between certainty and service, rules and principles, Thomas closes down other well-established antimonies – as between the legislature and the judiciary (pp 37-53, 77-107); between law and politics (pp 4-7); between justice and mercy (pp 165-183); between law and justice (pp 208- 213); between law and equity (pp 376-379); between law and morality (pp 375- 381); between equity and morality (pp 375-376); between equity and non- exploitation (p 375). From his premise that “Equity can be readily equated with conscientious (sic, but surely conscionable) conduct”, by the substitution of principles for rules and emphasis on the fiduciary relationship (pp 376-377) equity can, in being first fused with the law, then go on to supplant the law. Obviously you cannot have all doors and windows of the legal system open to all four winds of change at the same time, lest the resulting whirlwind, as in the Book of Job, blow the entire Palace of Justice all away; but there is no little suggestion of subjectivity in fusing, not just both law and equity, but also both legislature and judiciary to achieve this aim.

Thomas also conducts his case by exaggerating former mole-hills into mountains, so that all of contract law now pivots on non-exploitation (which, if taken seriously, would put an end to world trade and close all but indigenous production); a theory of do-gooding (ameliorative justice) which is now destined to take over from justice as an absolute (pp 358-395); just as he deplores – surely ironically, in the context of his own highly individualistic views, “the cult of individualism” (p 373). His view that “traditional New Zealand Maori society … was based on concepts of unity, community, solidarity” (p 372, n 25) perpetuates the myth of “the noble savage”, and is grotesquely anachronistic as offering any counterpoint to the “cult of individualism” in “western industrial society”. Such mountains are made, not moved by acts of faith.

The fierceness of the resulting impasse – which is of a seriously constitutional nature – leaves not much room for moderates (and far less for this reviewer who is outclassed in his understanding of exactly what it is that is going on[40] except that it be both pernicious and subversive to all that he has been ever taught about the law) – although those at both extremes, for their own sweet reasons, may agree with Thomas that, as put by another reviewer, “too many judges are simply ‘muddling along’ without a sound conception of what their role entails”[41]. The question, as so put, is an open, ambiguous, but not necessarily a leading one: to what extent, as reflected by both books, but in particular by his most recent one, could Thomas himself be seen to have been “muddling along” without sound conception of what the judicial role entails? It is not until a judge speaks or writes ex curia that he becomes vulnerable. Otherwise he is all too much tempted by the respect accorded to him by society to equate his person with the court, and to mistake the curial authority for being that of his own person or of his office or even that of personal intellect. The truth is that any judge is not much different ex curia under the Rule of Law from an ordinary person – which in recent times seems to have led some judges to rebut any but their own more “realistic and modern conception of the rule of law” (p 270, 300). Even were this valid for any judge to do, it would be a matter of exerting judicial autonomy over the law by way of, at the most, sociological values.

It would be impossible for anyone to write about one’s life’s work without being biographical if not autobiographical. What any former judge writes about the legal system – whether written for his own time by a Holmes or a Cardozo, and most certainly for our own time by moderns such as a Denning[42] or a Bingham[43] , is bound to be a biographical give-away. Whether explicitly or inexplicitly about one’s own life and work it takes no more than a little practical reasoning by way of adding two and two together to find four to be the valid conclusion. Psychoanalytic jurisprudence is not only unnecessary but something of an affront to the still respected judiciary. On this account, everyone connected with the law is vitally interested and engaged to find out what the judge – outside the context of the concrete case before the court – really thinks about the legal system. This may prove, no less than for any professional, either the judge’s downfall, or else, given the consolations of philosophy as they were to Marcus Aurelius, the makings of a new beginning. As to whether they are just more of the same, or else a transcendent view by which to substitute a new reality for a former perception requires time for reflection, a certain letting-go from what once seemed to cut so close to one’s survival, in short, a view of all eternity rather than of O tempora mores!

So much if you like, for the small print of the law in the perhaps failing print of our own small time. There may be much larger issues at stake, however, over any much longer time. Records remain valuable, although, for being no more in themselves than the measure of their own time. Mansfield is remembered, but often no more than as a counterfoil to the continuity of contract. The all too serious Lord Simmonds might seem to come off second best against the light-hearted froth and banter of any Lord Denning, yet Denning’s own lack of depth may simply serve to chart the shallows of our own trivial age. The Common Law, in its being customary, must await its evaluation according to its own accustomed time. What goes beyond the small print of the law in being written up for all time?

Beyond today’s small print of the law can rarely be written larger without recourse to legal history. Thomas quotes from E P Thomson’s Whigs and Hunters[44] that “the rule of law is only another mask for the rule of a class”[45] . Thomson’s work is in itself a very shoddy, but unsurprisingly popular piece. Masquerading as legal history in less than strenuously academic circles, it is much given to the pathetic fallacy and taken up with painting social pictures, full of polemic in its treatment of primary as secondary sources, and prepared to excuse eighteenth century terrorism in the name of class action.

Reviewers are accustomed to providing some sort of outline or summation of any book reviewed. In this case the book under review cleverly programmes itsown strongly sign-posted direction of travel. Its chapter-headed programme is couched with all due splendour in the most memorable of Churchillian words and Ciceronian phrases. The juxtaposition of piety with precedent and certainty with idolatry (strict implications between each duality obviously exist in their author ’s mind) will never be forgotten – even if ultimately forgiven. There is no doubt from these headnotes as to the radical direction of the author’s travel, which, like the pursuit of state privatisation (a parallel case for the present one of personalising the law) is conducted at a breathless pace of (mostly undergraduate) dynamics. This is a book from which to warn off all below the twenty-fifth degree of the law’s freemasonry, but alas for the catchy tune and today’s popularly-sought refrain, this is going to prove a temptation for all those enamoured by the Denningesque, to throw themselves off from the highest pinnacle of the Masonic temple. After having postulated the problem of judicial muddling along in all its shapes and forms of aspirational, romantic, and presumptive positivism (chapter 1), having lifted the identified curse of formalism and waged war on legal fundamentalism (chapter 4), then having rejected the piety of precedent (chapter 5) and broken the back of idolatrous certainty (chapter 6), the author proceeds, after poking fun at the foibles of precedent (chapter 7) and with a shout from the rooftops that there is no such thing as impersonal law (chapter 8) to make his way, more reflectively and discursively than formulaically (chapters 9 and 10), towards a new judicial methodology (chapter 11) obtained by means of practical reasoning and principles (chapter 13) as already prefaced by hard realism and pragmatic practice (chapter 12). These are more like pictures in an exhibition, a rhetorical slideshow of visual impressions, as are many power-point presentations these days in their defiance of seriously scholastic argument. How does one disprove that which avoids most means of proof?

So remarkably free a radical is Thomas in his treatment of jurisprudence – replete with parables (if not parodies) of the Good Samaritan masquerading as the activist judge (pp 88-91), cases being decided as a result of very casual conversations among judges’ clerks (pp 108-114), and illustrations from the butchery of Tammerlane (pp 54-55) – and so remarkable is the resulting jurisprudence for its visual impact, that the resulting drama of justice must either dispose all fellow play-goers to follow suit or else outlaw academics from all but the stage and screen in answering the same. Do jurists do no more than paint pretty pictures? Thomas begins by quoting Bickel[46] , but avoids crowding his canvas with those who have stoutly opposed[47] , perhaps even trounced[48] the .views of Bickel. The resulting pretty picture is at the expense of rarely pleasant scholarship. To what extent is elegantia juris a matter of aesthetics[49] ? Who dares distinguish folly from wisdom? Since the last Roman carnival by which Rome fell, legal entertainment has never held such a sacred place in the play-way system of legal education.

From first to last, The Judicial Process provides a delectable treasury of quotable quotes about the law – “a judge cannot simply judge as a plumber may plumb” (p 1); “many judges hugged the skirts of the established body of law” (xviii); “making overt that which is covert” (p 349); and “the plunderings of highwaymen are beyond the pale” (p 373) are just a few. Rhetoric can put a thought in place from which the thought cannot lightly be displaced. Nevertheless, as with Mansfield’s rhetoric “the ties of conscience upon an upright mind are sufficient consideration”[50] , ultimately it is the forcefulness of the legal thought that counts.

So, too, there is enough well-marshalled name-dropping from those within the same school of thought to give superficial credence to the author ’s views – but not enough from outsiders by which to weigh up the outcome. The treatment of juristic classics – like those of Plato, Aristotle, Hobbes, Locke, Hegel, Kant et al – are given a titular credit-rating (p 273). (Moses is not mentioned) and “the most celebrated system of jurisprudence known to the world”(whether Roman or the Hebraic[51] ) is avoided, as are most absolutes, at all costs. The desultory result of paying any but some name-dropping lip service to the Greats only causes confusion and uncertainty – but confusion and uncertainty are meat to relativist jurisprudence. In the realm of teaching legal theory it is preferable that some theorists go to Hell (even if only a few get to Heaven) rather than have them all reduced to Limbo. Better to leave the philosophers (with Homer, p 273) on the heights of Olympus (or with the clerics on the top of Mount Sinai where “Justice is mine!” says the Lord) than to bring them down to the level of today’s trite peer-review. Still, it is always fascinating to witness the intrusion of some “invisible hand”[52]whenever justice is analysed apart from theological jurisprudence.

Thomas nevertheless claims to be in good company – although (as distinct from the classical authorities of Coke, Blackstone, and Dicey) almost all his heroes are among the still-living. Blackstone is but mentioned – and that to be accused by Bentham of complacency. Most of those listed in the authors’ index are like- minded and still-living contemporaries – although paradoxically it is from the late Professor Peter Birks that Thomas derives recognition for the articles and commentaries of academic lawyers as an increasing source of law (p xxiii). Thomas does his cause less good by keeping company with Lord Denning in his later and demented days (of story-telling and hubris championing of the little man) and the late Lord Cooke (of Thorndon) who, although not in the authors’ index infiltrates the cases upheld by Thomas to infect the antipodes with the same dementia of substituting his own personal principles of fairness for general and well-understood rules of law. The equivalent dementia among the lawmakers, should Thomas choose to re-tool more creatively as a parliamentary counsel, is known as being “session-happy”.

Aside from the forcefulness of its rhetoric, the author ’s new methodology is not helped in its communication by a series of stylistic problems. Compared with Bingham’s The Business of Judging, where the same stylistic discontinuity can be explained (but not entirely overlooked) by reason of that book beginning in a selection of (thirty or so) essays, lectures, and speeches, Thomas, by pursuing his own clearly identified and reformative if not revolutionary objective, is constrained to use more strenuously sequential argument. (Of course, since the whole objective of The Judicial Process is to attack and destroy the rigorousness of legal argument, Thomas himself falls into his own trap of thinking that rigorous argument can fall victim to less rigorous argument. No – on the contrary – argument is judged by its rigorousness!) Take the following paragraph from Thomas (p 3) as a typical example of his less than rigorous reasoning:

None, other than the uninitiated who seemingly lack an understanding of the dynamic of the common law, seriously question the fact that judges make law. The belief that judges do not make law is hopelessly out of date. As Lord Reid famously said as long ago as 1972: ‘We do not believe in fairy-tales anymore’.

The forcefulness of “none” is contradicted by there being some, namely, “the uninitiated who … lack an understanding”. Relying on those “uninitiated who … lack an understanding” to pace the argument invokes invalidity by way of strong conceptual association – allying those who would dispute the argument with those who are uninitiated and lack understanding – and so gives rise to the fallacy of composition. The same argument is also invalid for being ad hominem or ad homines (instead of being argued ad rem). The adverbs “seemingly” and “seriously” – both supporting the writer ’s outcome – serve to fudge or confuse the issue, and so promote ignoratio elenchi. The rhetoric of “hopelessly” and “famously” similarly pre-judge the outcome – and both in the sought-for direction of argument. That “judges make law” is the fallacy in dictione of equivocation and so is void for uncertainty. The modernity relied on by which being “hopelessly out of date” negatives one belief, confirms another belief in its being said by Lord Reid “as long ago as 1972”, and so is invalid for inconsistency. That any thing is so (as simply said by Lord Reid and that ex curia) commits the fallacy of secundum quid – since nothing said is thereby true. That to conclude from these three short sentences (as if forming a syllogism) that those who believe that judges do not make law believe in fairy-tales is void (among many other fallacies such as petitio principii or begging the question) for the lack of a distributed middle term. As said by Luce[53]“people who judge by general impression and not by rule readily fall into this fallacy”, yet The Judicial Process would have us substitute general impressions (call them principles if you will) for rule by rule.

This example of loose and fallible reasoning is unfortunately typical of arguments throughout The Judicial Process. Argument, qua argument, is always judged by its rigorousness. What else, other than by way of rigorousness do we have with which to evaluate argument? Could we use our feelings, our outlooks, our attitudes, our expectations, our desires, our wishes, and our ambitions to invalidate any argument? No, of course not! Argument is subject only to reason, and the more rigorous the reasoning, the better the argument.

Perhaps, given much time and patience devoted to critical philosophy, one could re-programme the above argument with more validity. As with the rest of The Judicial Process this might prove an intolerably demanding academic task. Many of the headings that Thomas uses – judges make law endlessly (p 3), and judges also make policy – regularly (p 4) are given axiomatic or self-evident status. The whole book is frustratingly sprinkled with words of wilful categorisation such as “simplistic” (p xxiii) “undoubtedly” (p 1); “realistic” (pp xxiii, xxvi, et seriatim); “logical” conclusions (p xxvi twice); “basic” (p 1); a “hard” realism, a “new” realism p 302): as well as fudge-words such as “seemingly” (p xxiii); “simply” (p 1); and “perhaps” (p 3). In his writing later about “the imprecision of language” (pp 125- 126) Thomas should have first taken to heart Hayakawa’s Language in Thought and Action – How men use words and words use men[54] .

Like much writing in leftist critical legal theory, the tone of much of the conversation in The Judicial Process is iconoclastic, cheeky, and avant-gardist (in wanting to bury the past rather than just critique it)[55] . Indeed, it is the anti- historical flavour of The Judicial Process that causes so much angst to the historically minded Common Lawyer. Thus The Judicial Process begins with critique and quickly develops into polemic (pp xv-xxvi, 1-138) when it might more credibly open with straight reportage. It dives in and out of story-telling (with case analysis not always as counter-narrative) and thence into speculative theory and exceedingly personal opinion – and none of these genres are either aptly handled in themselves nor suitably integrated (as done by any Mathew, Mark, Luke or John in religious writing or by Plato, Popper, or Carlyle in secular writing) into an eclectic whole. Stylistically speaking, this is the blunderbuss approach – which, when done from a great distance has never had much effect on the Common Law – and this despite the occasional mine-laying of a Mansfield or the sapping of the foundations by a Denning. The methodology of The Judicial Process is given more by way of manifesto than argument – but then if law is to be liberalised and liberated from rigorous argument, why should that not also apply to the means by which this liberation be done?

For any lawyer who opposes legal fictions (p 313), there is an awful lot of fiction in this book. By a series of dialogues, parables, parodies, and entertaining diversions (each of them at best substituting literary fiction for legal fictions) Thomas satirises rather than rationally disarms his adversaries. Thomas uses Wagner ’s libretto from The Mastersingers (where the song contest is won by the competitor who breaks all the rules) to argue against positivism. The argument is shallow. First and foremost, Wagner ’s is a song contest – and not to be identified (as Wagner himself wanted it to be) as settling the score of controversy surrounding his own art. Had Thomas engaged in as many music competitions as this reviewer has, he might have a different view of the need, especially in contesting art, to abide by the rules of the contest. Overlook the discipline underlying art, and you mistake creativity for libertarianism.

Contest is consensual – frequently contractual, and to be waged according to the rules. Otherwise, don’t compete, but instead, as Poincaré says[56] , enjoy the enterprise (instead of enter-prize) for its own sake. The same goes for contesting science[57] . One of the rules for awarding the Nobel Prize is that it cannot be awarded posthumously. The prize list, in itself, becomes a list of survivors. Kristian Birkland died just as the working committee considered his nomination for a lifetime’s work on investigating the aurora borealis[58] . The rules, as for any competition, either remain the rules or else trounce the chivalric basis of all competition. So what, then, is a legal contest – one, as Thomas suggests, that need not abide by the rules? Did Thomas himself not become a judge by the rules? And if so, then why should anyone pull up and throw away the ladders by which one has climbed from Bar to Bench?

The gloves are never off in this book – although these gloves are often no more than those of literary conceit. The Judicial Process is, at best, a fun book – but only for those who know enough not to take it seriously. Is the Common Law still in stout enough heart to withstand the barbarians who would knock down its walls and invade its citadels? For the less informed, and for the forcefulness they exert on the Common Law, The Judicial Process may prove a deadly draught.

Written in the first person, as Thomas writes much of his book, makes things readable – although by facilitating absorption, readability can also make for risky reading. Like the double-edged sword of both justice and scripture[59] , readability cuts into assumed values. First, second, and third persons exert their own respective cutting actions by which to distinguish personal opinion from structured critique, from strenuous argument, from credible testimony, and from objective conclusion. Too much of the first person betrays more of a biographical, if not autobiographical concern than most scholarship is able to bear. Ameliorative (or do-gooding) justice is not rigorous enough. Fairness, we are thought to have outgrown with our complaints in early schooldays of things being “not fair”; yet, “Throughout this book I have used the words ‘justice’ and ‘fairness’ interchangeably” writes Thomas (p 370). Non-exploitation seems a more back- handed version of justice – shutting the stable after the horse has bolted – than it is indicative of a “progressive or creative judge”.

The present “flow of the river”, as Thomas uses this figurative expression (borrowed dangerously from Heraclitus since his followers found that they could no longer step into the same river twice) with which to identify the Common Law[60] may well favour every move advocated by Thomas. The Common Law is fast returning to a principle-oriented (for which read politically-motivated) Civilian mode of reasoning in the English Courts of Law[61] . Unlike Australia[62] , New Zealand does not apparently have the material resources, the intellectual independence, or the legal autonomy, to make any last stand[63] . The present prognosis, first presented by H R Hahlo[64] in 1967 when he asked whether “America [would] succeed England as the chief custodian of the common law”, is not a good one for the Common Law[65] . Nevertheless, Thomas, evinces “little interest in prediction.”[66]Already, few writers think of giving the Common Law its customary capitals any more than for the now much beleaguered rule of law.

Nevertheless, as an exceedingly accurate and experientially first-hand record for the Common Law’s decline in its New Zealand jurisdiction, The Judicial Process by E W Thomas is likely to become the standard text. For generations of legal historians now and to come it may provide the most authoritative account of the way in which the Common Law in its New Zealand jurisdiction has gone off the rails. Even against all likelihood of any revival of Antipodean Common Law, this fully documented dissertation is set to provide an authentic historical record for the Common Law’s decline – paradoxical though this result may be for what is so strongly an anti-historical work.

Thomas makes much of such cases as Lewis v Attorney-General of Jamaica[67] (pp 164-183), Searle v Wallbank[68](pp 208-213), and Ross v McCarthy[69] (p 208-214). Is there any point in analysing these cases? Yes – a deeper investigation, not only of such cases but also of their counter-cases, might well demonstrate a widening crisis of a constitutional nature in the Common Law. This deeper investigation into legal system (aside from judge-made law) goes beyond the purview of this already lengthy book-review. Surely then the commentaries which Thomas makes on such cases call for detailed examination? No – since such cases are not collected for an objectively neutral and jurisprudential purpose, they cannot be examined outside the context of that purpose. Those who use “sociological considerations” as a touchstone for law will in turn be judged by “sociological considerations”. Once we know that the commentator ’s standards of judgment are to promote politics and to allow for and authorise lawmaking in the courts, there is no point at all in any such analysis – since we are no longer debating law but only debating modernity – “assuming that the passing of each year confers some measure of enlightenment” as Thomas himself assumes (p 208). The same goes for almost every other law case commented on in this book. There are none that, according to the author ’s terms of reference and criteria for the judicial process, could be given any legal or jurisprudential scrutiny. The author has placed every such judicial decision beyond the pale of jurisprudential falsification. Instead, each becomes the target not only for social science but populist clamour.

So much more needs be said both historically and prophetically about where the present impasse in legal reasoning lies for today. It is an impasse in language and logic as much as in law. We might compare Ciceronian and Churchillian rhetoric – “the offspring of troubled times” according to Seneca the Elder – with that of Seneca, Tacitus, and Quintillian. The impact of universalism on classical Greek, Golden Latin, and Modern English debases each of these lingues franche into koine, dog-latin, and pidgin English at the expense of legal reasoning. Modernism provides a disguise for cultural decline – and post-modernism a means of disguising the further fall – so why should all these subversives not be experienced in law? Godwin’s Political Jurisprudence[70] , now forgotten but for a few quotations, still operates as a weapon in the hands of the modernists. Swift’s Battle of the Books[71] long fought and apparently lost is now hardly ever read. Deconstructionalism – by which (against every rule of documentary evidence) legal texts are de-construed into context – brings death even to statute law. “Here Lies the Common Law: Rest in Peace” was long ago mourned by Hahlo[72] .

Attempts to breathe new life into old ways of doing things – new lamps for old – are not always successful. There is nothing left to do but for the protagonists from both factions to shake hands and amicably part company, until they meet their new common enemy, who is, to use the phrase with which Gorbachev warned Yeltsin, “already standing in the wings and waiting his cue”[73] . As with the decline in language, truth, and logic the next and following phase of the decline in common law jurisprudence will confront us with a horribly bureaucratic and ultimately totalitarian common enemy. The differences between those who oppose and those who extol judicial activism are going to be slight in consequence. Waldron puts his finger on the political consequences, where any appointed court ruling supreme over an elected legislature is far less democratic than is sensed by its popular support. This can already be measured by the rise in litigation (largely handled at the level of an appeal court that in the official hierarchy of the nation must be considered less than supreme); by the preoccupation of the same Supreme Court, rather than as with hearing and deciding cases and declaring judgments[74] nor with the custodial responsibility for upholding well-established law[75] , but with matters of their own status, public relations, and popular support. Will there be a last stand, or will it be too late for those opposing factions under the Common Law, as well may be the case already in Britain, to restore and resurrect the jurisprudence of the Common Law? Alas for scholarship, but more charitably for the author of the Judicial Process, time and space do not allow.

Unless Thomas uses rigorous logic with which to postulate a proof, there is no use of rigorous logic by which to disprove his postulate[76] . The most we can do is to evaluate his opinion. In the end, we come back to the beginning – the preface and introduction to the book. As is most of the book, both preface and introduction are strongly autobiographical, and this both in terms of opinion and experience, although here, from pages i-xxvi and 2-23, more explicitly autobiographical than elsewhere in the book. Whether written first or last, these summate almost the entirety of what follows – that individual creativity may be substituted for the collective discipline of law (p xxi); judicial autonomy (something surely more than independence) is inevitable and essential for justice (p xvi); but if binding precedents are only rarely in issue (p xvii-xviii) then we may ask why the need for “a deliberate return to a more principle-oriented approach” (p xv)?

In keeping with his theory of ameliorative justice, Thomas wheedles some degree of compassion from his critics (pp xxvi, xxvi,) he having “done nothing more than bring to the study of the judicial process a determined realism and a relentless determination”. He apologises for having fallen short of the “ways of the scholar” (p xxiv). Every autobiographical remark should be treated with grace and charity, although it must sorely try the patience of any legal theorist to hear of any judge’s claim to have “picked up [legal theory] ‘on the run’” (p xxiv) and written a nearly 450-page book on reforming the judicial process on that basis. Most nearly every academic takes delight in recognition (and worldly promotion now relies on academic citation instituted at a governmental level) but legal theory is much more than name-dropping, or name-tagging, or name- breaking, or name-making. Yet for finding one’s way through the thickets of legal theory, and keeping up with the play here are just too many big names being bandied about in this book. There is Plato the story-teller (although not Aristotle the logician); Dworkin, just occasionally the myth-maker whose Judge Hercules labours to clean out the Augeian Stables (but nothing much of Fuller ’s King Rex wading through a lifetime of failure in law-making); only lip-service is given to Kant whose categorical imperative might be a real embarrassment, nor of Kelsen for whom stare decisis might be too much like a systemic grundnorm.

Legal theories provide a good means of critical analysis, but very rarely produce, out of themselves, any constructive synthesis. We may agree with Thomas that when he as “a judge at first instance … followed [his] own advice in not need[ing] to feel bound to apply a purported precedent … the world as we know it did not come to an end” (p xxi); nevertheless the end of the legal system as we knew it then most certainly drew closer. In that context, compassionate criticism must abide by the original purpose of book reviews. Book-reviewing was first devised by the lawyer-magistrate Henry Fielding[77] . Book reviews were devised for the purpose of putting books on trial. Nothing short of a rigorously processed trial should satisfy any law-book review – but it is difficult to disprove any proposition that has never been proven. Because the onus of proof for judicial activism clearly lies on its proponents, we shall, instead of crying “foul” for their bad play against the legal system, simply record a verdict against their case of “not proven”. As in the Scottish legal system, where law and equity have long been fused, that verdict carries with it a certain moralistic and disapproving taint. By virtue of their “more fluid concept” (p 222) of the law, together with their Heraclitean comparison of the Common Law with “the flow of … a mighty river” (p 350) the proponents of the fusion fallacy could hardly argue against that verdict by way of continuing to keep the civil and criminal jurisdictions apart. Fusion creates no less a critical mass than fission.

We began this law-book review by quoting from de Tocqueville’s Democracy as to the criteria for impartial scholarship. We end by quoting from Thucydides[78] , without whose account of the Peloponnesian Wars we would have no current concept of democracy[79] . Thucydides records of Diodotus as saying in defence of ameliorative justice to save the Mytilenians, –This is not a law-court where we have to consider what is fit and just– being reminded in turn by Cleon that –… this is the very worst thing – to pass measures and then not to abide by them. We should realise that a city is better off with bad laws, so long as they remain fixed, than with good laws that are constantly being altered …

By his advocating ameliorative justice, not only mercifully and aside from administering law through the courts, but in the very courts by which to alter the law, the author of The Judicial Process is thus firmly hooked on the horns of a classical dilemma. Justice should be tempered with mercy as iron is tempered into steel, but to substitute subjective mercy for objective justice in the courts is

to ruin the raw iron from which society derives and disciplines its strength through the legal process.

Nigel Jamieson[*] ,

Senior Lecturer in Law,

University of Otago.


[2] (1993) Monograph 5, Victoria University of Wellington Law Review. For a rejoinder see D F Dugdale, “A Polite Response to Mr Justice Thomas” (1993) 23 Victoria University of Wellington Law Review 125.

[3] As reported by The National Council of Science and Technology of Mexico in 295Scientific American, September 2006, M8, “the fifth most cited Mexican author during the 1980-1990 decade and the third most cited Latin American author in medical sciences (ISI 1994)” is Dr Julio Sotelo, with 3133 citations as of 2002.

[4] Compare Bernard Rudden, “Civil Law, Civil Society, and the Russian Constitution” (1994) 110 Law Quarterly Review 56-83 with Bernard Rudden, “Civil Society and Civil Law” in The Revival of Private Law in Central and Eastern Europe ed Ginsbergs, Barry, and Simons (1996, The Hague, Nijhoff) 17-44.

[5] Lawrence Sterne, The Life and Opinions of Tristram Shandy, Gentleman, first published in nine volumes between 1759 and 1767 (World’s Classics Edition, first in one volume 1903); filmed (UK 2005) by Michael Winterbottom as Tristram Shandy: A Cock and Bull Story. I am indebted to Rex Ahdar for pointing out to me that Arthur Allen Leff has already drawn on Tom Jones in reviewing Richard A Posner ’s Economic Analysis of Law in (1974) 60 Virginia Law Review 451.

[6] Biographical Note written on the occasion of his receiving the Nobel Prize.

[7] A reappraisal of law as a science – even as seen by scientists – can be gathered from current pages of the Scientific American; eg Volume 295, no 1, July 2006 – pp 10-11 on governmental regulation, p 17 on internet crime, p 20 on confirmation bias in law and politics; pp 66-71 on forensics.

[8] Conjectures and Refutations: The Growth of Scientific Knowledge (London, Routledge & Kegan Paul, 1963).

[9] Alexis de Tocqueville, Democracy in America, (London, Folio Society, 2002) 15.

[10] Speaking for Canada, Robert Martin “Criticising the Judges” (1982) 28 McGill Law Journal 1, writes “… there has been remarkably little public discussion of judicial inadequacy. … Our timidity is explained primarily by the place which courts hold in the Canadian ideological system.” On the other hand, D C Jackson, in his Inaugural Lecture as Professor of Law on 23 October 1973 at the University of Southhampton, “Law and Policy – Judges on Horseback?” ironically takes the judiciary to task for failing “to recognise their duty of weighing considerations of social advantages”; in Malaya Law Review Legal Essays (1975, Singapore, Malaya LR) 222, 255. More recently, see Ronald J Krotoszynski, “’I’d Like to Teach the World to Sing (In Perfect Harmony)’: International Judicial Dialogue and the Muses – Reflections on the Perils and the Promise of International Judicial Dialogue” [2006] MichLawRw 38; (2006) 104 Michigan Law Review 1321.

[11] De Tocqueville, (op cit) 511-512, 603.

[12] See Cass R Sunstein, “Foreward: On Academic Fads and Fashions” (2001) 99 Michigan Law Review 1251.

[13] For the concept of jurisprudentia perennis, see Nigel Jamieson, “Reinventing Jurisprudential Wheels – A Plea for Jurisprudentia Perennis[2006] OtaLawRw 7; (2006) 11 Otago Law Review 263.

[14] “Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society”: Alexander M Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd ed, New Haven and London, Yale University Press, 1962) 25-26; but not a work having either title or contents predisposing the legal scholar to credit its author with the requisite insulation of law from politics.

[15] Supra n 1.

[16] A R Galbraith, Book Review: “A Return to Principle in Judicial Reasoning and An Acclamation of Judicial Autonomy” [1993] New Zealand Law Journal, 320, 322.

[17] The distinction to be drawn between presenting a dissertation and proving a thesis in the scholarly process is so closely parallelled by the distinction between rigorously deciding on precedent and “a more principle-oriented approach” in the judicial process as to introduce a subtle irony into the equation of judgeship with scholarship for the purposes of substituting principles for precedent.

[18] R W M Dias, Jurisprudence (4th ed, London, Butterworths, 1976) 162-217.

[19] C K Allen, Law in the Making (7th ed, Oxford, Clarendon Press, 1964) 161-379.

[20] (2nd ed, London, Sweet & Maxwell, 1977).

[21] See David Luban, “Legal Modernism” (1986) 84 Michigan Law Review 1656, 1657-1659.

[22] For postmodernity (and its associated process of deconstruction) see “Introduction:What Is Postmodernity Anyway?”, “The Postmodern Challenge to the Ideal of Community”, both in the context of “The Possibility of Legal Interpretation”, “The Call to Judicial Responsibility”, and “Law Dressed Up as Justice” in Drucilla Cornell, “The Philosophy of the Limit” (New York, Routledge, 1992) 1-12, 39-61, 91-169.

[23] Return to Principle, 74; Judicial Process 270, 300.

[24] Joseph Kraft, in reviewing Gabriel A Almond, The American People and Foreign Policy in (1951) 60 Yale Law Journal 200. The reviewer nevertheless concluded that, “despite his broad purview [sociology, psychology, and international affairs]” and “bright modernity”, the same author had “nothing very remarkable to say”.

[25] The “transparent choice” (p 306) of preposition – whether in or on – could be critical.

[26] Judicial Process, xvii.

[27] On judicial legislation, see Sir Henry Maine, Ancient Law (London, Oxford University Press, 1954) 25: “No examples … can be better calculated to illustrate the wide diffusion of legal fictions, and the efficiency with which they perform their twofold office of transforming a system of laws and of concealing the transformation [than of judicial legislation].” If such is true, we may infer the present crisis of judicial activism to arise from the failure in juridical methodology “of concealing the transformation” achieved by legal fiction.

[28] H L A Hart, The Concept of Law (Oxford, Clarendon, 1961) 138-144.

[29] P M Bakshi, An Introduction to Legislative Drafting, (Bombay, Tripathi, 1972) 2.

[30] Supra, Democracy in America, 111.

[31] Op cit 1861.

[32] On modernity and social progress, see Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber (Toronto, University of Toronto Press, 2000).

[33] If this account is going to explain a big issue, the account itself is going to be a big issue. On Institutionalist and Pandectist schemes of law, see Peter Birks and Grant McLeod, Justinian’s Institutes (London, Duckworth, 1987) 10-26.

[34] Fritz Schulz, Principles of Roman Law (Oxford, Clarendon Press, 1967) 40.

[35] See “the most notorious Scottish property law case of the modern era”, Sharp v Thomson (1997) SC (HL) 66, which calls for some more direct and precise dealing with the causative source, and not merely the consequences of judicial activism. See, too, Lindsay Farmer and Scott Veitch, in their Introduction to The State of Scots Law ed Farmer & Veitch, (Edinburgh, Butterworths, 2001) 151 for “Scots Law’s ‘Year of Living Dangerously’ ”.

[36] (1787) 1 Cox, Eq Cas 318: and for relations between the Derings and the Winchilseas

from the point of view of legal history or social science, The Diaries and Papers of Sir Edward Dering, Second Baronet, 1644 to 1684 ed Maurice F Bond (London, HMSO, 1976).

[37] Sir Henry Maine, Village Communities, 75.

[38] Fritz Schulz, Principles of Roman Law (Oxford, Clarendon Press, 1936) 164.

[39] For legal antimonies and how they work in legal history and legal theory, seeAlan Norrie, Law and the Beautiful Mind, (London, Glasshouse, 2005) 1-25 and seriatim.

[40] To quote from Leff (supra 482) “ … we shall have to continue wrestling with a universe filled with too many things which we understand too little and then evaluate them against standards we don’t even have.”

[41] Judicial Process Ch 2.

[42] The Discipline of the Law (London, Butterworths, 1979).

[43] Tom Bingham, Senior Law Lord, The Business of Judging (Oxford, Oxford University Press, 2000).

[44] Whigs and Hunters: The Origin of the Black Art.

[45] Judicial Process, 388.

[46] Supra n 7.

[47] “In the past two decades we have witnessed the flight of system from law, the decline of precedent, and the use of litigation for broad social, rather than traditional private, purposes”; Jerome A Barron, “The Ambiguity of Judicial Review: A Response to Professor Bickel”, (1970) Duke Law Journal 591: “ … whether his [Bickel’s] analysis is valid and beneficial or, as I believe, vulnerable and dangerous, it is too important to go undebated”; Gerald Gunther, “The Subtle Vices of the ‘Passive Virtues’ – a Comment on Principle and Expediency in Judicial Review” (1964) 64 Columbia Law Review 1.

[48] The word “perhaps” is allowable since Anthony T Kronman attempts a posthumous resurrection of “Alexander Bickel’s Philosophy of Prudence” (1985) 94 Yale Law Journal 1567 – thus taking this debate into its fourth decade.

[49] See Elegantia Juris – Selected Writings of Francis Headon Newark (Belfast, Northern Ireland Legal Quarterly, 1973) – especially, in the context of the present debate, the piece (137-150) on “Bad Law”, and (151-162) on “Off-Beam Law Reform”.

[50] Hawkes v Saunders (1782) 1 Cowper 289.

[51] Pace Maine, op cit 1.

[52] See James Allan, “The Invisible Hand in Justice Thomas’s Philosophy of Law” (1999) NZLRev, 213, “Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century (2006) 17 KCLJ 1.

[53] A A Luce, Logic (London, English Universities Press, 1958) 160.

[54] S I Hayakawa, 2nd ed 1952 (London, George Allen & Unwin, 1966).

[55] See Laban op cit 1671, 1675.

[56] “The scientist does not study nature because it is useful to do so. He studies it because he takes pleasure in it and he takes pleasure in it because it is beautiful. If nature were not beautiful it would not be worth knowing and life would not be worth living”: Henri Poincaré, Science and Method (1960, New York, Dover).

[57] See M H Hoeflich, “Law and Geometry: Legal Science from Leibniz to Langdell” (1986) 30 American Journal of Legal History 99, and Roger Berkowitz, The Gift of Science – Leibniz and the Modern Legal Tradition (2005, Cambridge, Harvard UP).

[58] Lucy Jago, The Northern Lights (2001, New York, Vintage) 280.

[59] See Thomas on “Our Lady of Justice … why the sword?” The Judicial Process, 358- 359. Is Thomas also an anti-smacker? Neither Justice, nor Angels, nor the Holy Spirit are namby-pamby figures. “I come, not to bring peace to the world,” says Jesus Christ, “but with a sword … and a man’s foes shall be of his own household”: Mathew 10, 34-36. “And take the helmet of salvation, and the sword of the Spirit, which is the word of God”: Ephesians, 6, 17 “And to the angel of the church in Pergamos write – These things saith he which hath the sharp sword with two edges”: Revelation 2,12. “ … he placed at the east of the garden of Eden Cherubim, and a flaming sword which turned every way, to keep the way of the tree of life”: Genesis 3, 24. Good swordplay, at least with words (which are but a substitute for weapons), proves one’s legal calling in the Biblical exercise of “sharpening steel on steel”.

[60] Judicial Process, 350-351.

[61] “By dispensing with Parliaments and by dismissing all Judges who dared to interpret the laws impartially, Charles removed every constitutional check upon his actions. … The professional jealousy felt by the lawyers in the courts where English Common Law was administered, against these Prerogative Courts dealing out a different law by different rules of procedure, had been deeply stirred by the fierce and arrogant Coke … In essence the quarrel was this: James and Charles held, with the students of Roman Law, that the will of the Prince was the source of law, and that the Judges were ‘lions under the throne’, bound to speak as he directed them. Coke, on the other hand, in the spirit of the English Common Law, conceived of law as having an independent existence of its own, set above the King as well as above his subjects, and bound to judge impartially between them. Laws were alterable only by the High Court of Parliament”: G M Trevelyan, History of England (3rd ed, London, Longmans Green, 1945) 390-391. As for a return to inquisitorial rather than adversarial modes of legal thought in the legal process today see in The Trial on Trial – Truth and the Due Process vol 1 ed Antony Duff, Lindsay Farmer, Sandra Marshall & Victor Tadros (Oxford-Portland, Hart Publishing, 2004).

[62] Cf D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005) with Arthur JS Hall and Co v Simons [2002] 1 AC 615.

[63] CA 17/03 [8 March 2005].

[64] H R Hahlo, “Here Lies the Common Law: Rest in Peace” (1967) 30 Modern Law Review 241.

[65] Op cit 259. More ironically, however – and especially in the context of an intervening Vietnam, Afghanistan, and Iraq – Hahlo’s penultimate conclusion that “Within the last fifty years the pax Americana has superseded the pax Britannica” does not hold true.

[66] Judicial Process, 251. Since history and prophecy go hand in hand, no more than a miniscule “interest in prediction” can be predicated of the anti-historian.

[67] [2000] UKPC 35; [2001] 2 AC 50.

[68] [1947] AC 341.

[69] [1970] NZLR 449.

[70] See William St Clair ’s most scholarly account in The Godwins and the Shelleys (London, 1989); and the recent paper of Ian Ward, “A Love of Justice: The Legal and Political Thought of William Godwin” (2004) 25 Journal of Legal History 1-30.

[71] A satire –“ a sort of glass wherein beholders do generally discover everybody’s face but there own”, to quote from Swift’s Preface to his Battle of the Books. This work parodies the Ancient and Modern Learning Controversy (also known as the Phalarus Controversy, and engaged in by Sir William Temple). See A Guthkelch in The King’s Classics edition (London, Chatto and Windus, 1908).

[72] Op cit.

[73] “I am therefore under no illusion that I may be merely anticipating a future legal regime”: Judicial Process, 251.

[74] Lai v Chamberlains, [2005] 3 NZLR 291 (CA). As at the time of writing this book review, this case has been argued on appeal to the Supreme Court of New Zealand, from which the case still awaits judgment [since given 11 September 2006 [2006] NZSC 70]. The present analysis from a jurisprudential point of view is directed to the judgment in the Court of Appeal, but with Thomas J from the Supreme Court condemning formalism [207] opposing certainty [212] and deciding cases (even although contrary to settled precedent [100-104] and clearly understood legislation [105-122] on the basis of populist opinion [217] this has, in the context of Thomas J’s commentaries on the judicial process all the characteristics of self-fulfilling prophecy and self-made justification.

[75] In Attorney-General v Ngati Apa [2003] NZCA 117; (2003) 3 NZLR 643 the New Zealand Court of Appeal overruled and resiled from its very well settled decision given over 40 years earlier in Re the Ninety-Mile Beach [1963] NZLR 46.

[76] It is worthwhile remembering in both scientific and academic life that it is not always possible to disprove what either has not been or cannot be or proved.

[77] For trial by book review, see Nigel J Jamieson, “The Ubiquitous Book Review”, (2006) 17 Law and Critique 201.

[78] Thucydides, The Peloponnesian War, trans Rex Warner (London, Penguin Classics, 1954) 180-187.

[79] See Karl R Popper, The Open Society and its Enemies vol I (London, Routledge, 1962) 94, 183-189, 255.

[*] The author acknowledges the research assistance (given ex gratia) of Simon Currie LLB

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