(10) Law


One mistake and everyone judges you

A good lawyer knows the law; a great lawyer knows the judge



 If convicted, the defendant is sentenced. This normally occurs after the court is apprized of his previous criminal record, if he has one, as well as other information about his character.

Where he faces the prospect of a custodial sentence, reports may be submitted to the court concerning the defendant’s background: his education, family, employment history, and so on. Psychological or medical reports may also be presented, along with evidence, including witnesses to testify to his unimpeachable integrity. This may be followed by a moving plea in mitigation of sentence in which his lawyer attempts to convince the court that the accused is a victim of the cruel vicissitudes and privations of life: poverty, manipulation by others, poor parenting, and other equally powerful forces that were beyond his control and are where the true responsibility for his crime lies.

Every jurisdiction will, of course, have a different range of sentences available to a trial court. These may include imprisonment, a fine, a probation order, a community service order, or a suspended sentence of imprisonment (the term of imprisonment is suspended for, say, two years; if he commits an offence during this period, it may trigger the original sentence).

It is always open to the convicted defendant to appeal to a higher court, which does not hear the case again, but peruses the record of the proceedings in search of any mistakes that could justify a retrial. In certain circumstances, the prosecution may appeal a sentence that it considers too lenient.


Civil trials


The disparity between the common and civil law approaches is less marked in civil trials. French law, however, has come close to eliminating civil trials: the extensive pre-trial preparation undertaken by the juge de la mise en état results in the pleadings and evidence being reduced to writing. The lawyers merely present brief summaries of what the court already has before it.

Moreover, the standard of proof in French civil trials is no lower in civil cases than it is in criminal trials. In civil law countries ‘ordinary’ judges preside over ‘ordinary’ courts. Their jurisdiction, broadly speaking, involves the application of the civil, commercial, and penal codes, and the legislation that complements the codes. In France, the highest court in the ordinary court structure is the Cour de Cassation (Supreme Court of Cassation) which comprises some 100 judges who sit in six rotating specialized panels (five civil and one criminal) and, in certain circumstances, in combined panels or plenary session. It has discretion to review only questions of statutory interpretation. Germany has a number of independent judicial systems, each with its own supreme court. Most civilian systems also incorporate a group of administrative courts with separate jurisdiction.

The adversarial system is adopted also in common law civil trials. Instead of the government or Crown proceeding against the defendant, an aggrieved plaintiff sues the defendant, usually for damages, i.e. monetary compensation (for a tort, breach of contract, or other civil wrong). Both sides are free to call witnesses, and the rules of evidence are broadly the same as in criminal trials. An important difference, however, is that whereas, as we saw, the burden of proof in a criminal trial is ‘beyond reasonable doubt’, the plaintiff in a civil case need only prove his case ‘on a balance of probabilities’.


Who are the judges?


Common law judges are, with the conspicuous exception of the United States, appointed from the ranks of senior barristers, while European Continental judges are recruited in the style of the civil service. They are generally recruited directly from university through some form of public examination with no requirement of previous professional experience. Successful candidates are appointed at the bottom of the career ladder; professional training occurs within the judiciary, with promotions depending on merit.

Public competition is considered the most effective method of maintaining the professional standing and the independence of the judiciary. It checks political partiality and nepotism, but the fear of prejudicing promotion may inhibit a true spirit of independence from the executive branch. There is also the likelihood that since private practice is normally significantly more lucrative than a career on the bench; the more gifted law graduate may be discouraged from entering the service.

The position in the United States is complex. The federal courts are divided into three tiers: the Supreme Court, the Circuit Court of Appeals, and the District Court. Under the US Constitution, the president has the power to nominate and, in conjunction with the Senate, appoint judges of all three courts. He nominates candidates to the Senate after receiving recommendations from the Department of Justice and White House staff. The Department of Justice screens prospective nominees, followed by an investigation of the candidate by the FBI. Views are sought on the nominee’s suitability from the American Bar Association.

The White House Counsel’s Office also plays a role; it works together with the Department of Justice and members of the Senate, and considers recommendations by members of the House of Representatives, state governors, bar associations, and other bodies. The Senate Judiciary Committee scrutinizes the credentials of candidates. Should it reject a nomination, it is returned to the president to produce another name. Nominations by the Senate Judiciary Committee are considered by the Senate in executive sessions. Non-controversial candidates tend to be unanimously confirmed. Of the 154 nominations to the US Supreme Court between 1789 and 2004, only 34 were not confirmed by the Senate. When a contentious nomination is made, however, a debate ensues. An adverse recommendation by the Senate Judiciary Committee inexorably results in rejection of the candidate by the Senate. A successful nominee is formally appointed by the president.

The protracted nature of the process, including filibustering by senators, as well as the predictable ideological dimension of the system, has attracted considerable criticism. Its detractors contend that it undermines the independence of the judiciary. Defenders of the method claim that the president and Senate exercise a vital and legitimate check on the composition and standing of the federal judiciary. At the non-federal level, judges are elected in 21 American states; this is a rarity, not encountered in any other common or civil law jurisdiction. Although it may appeal to the democrat, it inevitably transforms judges into politicians who, to keep their jobs, must appeal to popular sentiments and prejudices. While it may be true that an elective system is preferable to one of nomination under a corrupt government which appoints compliant judges regardless of their ability, few lawyers support what John Stuart Mill called ‘one of the most dangerous errors ever yet committed by democracy’.

Dissatisfaction with the method of judicial appointment, based largely on the unrepresentative nature of appointees (few women or members of racial minorities), has led to the adoption of judicial appointments commissions which seek to bring to the process greater transparency and fairness. The commission is charged with responsibility for selection. They exist in some states of the United States, as well as in Canada, Scotland, South Africa, Israel, Ireland, and in a number of other European countries, including England and Wales, where since 2006 it functions as an independent non-departmental public body. Applicants for judicial office are required to submit a nine-page application form; short-listed candidates are interviewed. They are evaluated according to five criteria: intellectual capacity; personal qualities (integrity, independence, judgment, decisiveness, objectivity, ability, willingness to learn); ability to understand and deal fairly; authority and communication skills; and efficiency.


The politics of the judiciary


Though the US Constitution nowhere explicitly confers on the Supreme Court the power of judicial review, it has, since the seminal case of Marbury v Madison in 1803, asserted the right to strike down laws that it regards as in conflict with the provisions of the Constitution. This, the most muscular form of judicial review, entails a court of appointed judges (albeit with Senate approval) exercising control over democratically enacted laws. In doing so, the Court has effected major social and political transformations by declaring as unconstitutional a wide range of legislation by states on matters as diverse as abortion, contraception, racial and sexual discrimination, freedom of religion, speech, and assembly.

The Supreme Court of India has, with broad public support, exhibited a high degree of judicial activism in a number of areas of social, political, and economic life, including marriage, the environment, human rights, agrarian reforms, and the law governing elections. The judges have frequently described the constitution as more than a political document; it is considered an abiding declaration of ‘social philosophy’. And this philosophy is steeped in egalitarian values that represent a commitment to reform a society to correspond to the principles of social justice that inspired the framers of the constitution. One striking feature of the court’s jurisprudence is the concept of public interest litigation whereby the poor obtain access to the courts. The Court has held that legal redress for the deprived should not be encumbered by the restrictions of the adversarial system.

Similarly, it has accorded a liberal interpretation of Article 21 of the Constitution which provides that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ This has engendered a substantial expansion in substantive individual rights.

Under its post-apartheid constitution, the South African Constitutional Court has the power to interpret the constitution and has handed down far-reaching decisions, including declaring capital punishment to be unlawful and upholding the right to housing, the state’s constitutional duty to provide effective remedies against domestic violence, and the right to equality.

Strong judicial review is exemplified by the power of the United States Supreme Court, which may impose its judicial interpretations of the Constitution on other branches of government. Weaker forms of judicial review, on the other hand, permit the legislature and executive to reject such rulings, provided they do so publicly. They are increasingly incorporated in constitutions and legislation (such as Britain’s Human Rights Act of 1998, the New Zealand Bill of Rights of 1990, and the Canadian Charter of Rights and Freedoms of 1992).

Critics of judicial review consider objectionable the power of judges over democratically elected legislators. But even if our legislative bodies were genuinely representative, the arguments in support of their being in a stronger position than courts to protect and preserve our rights are, at best, doubtful. Not only are the vicissitudes of government and party politics notoriously susceptible to sectional interest and compromise, to say nothing of corruption, but it is precisely because judges are not ‘accountable’ in this manner that they are often superior guardians of liberty.

Moreover, the judicial temperament, training, experience, and the forensic forum in which rights-based arguments are tested and contested tend, I think, to tip the scales towards their adjudicative, rather than legislative, resolution. Indeed, it is hard to see how the latter would operate in practice. Since the rights in question are, by definition, in dispute, what role could elect parliamentarians play?

Unhappily, one’s trust in law-makers is rarely vindicated. Though sometimes contentious, certain fundamental rights are best kept off-limits to legislators, or, at least, beyond the reach of normal party political machinations. Would the civil liberties of African Americans have been recognized sooner without the Supreme Court’s historic Brown judgment, which held that separate educational facilities for black and white pupils was ‘inherently unequal’? Is the South African Constitutional Court more likely to defend human rights than its new, democratic parliament? Have the judgments of the European Court of Human Rights (which, sitting in Strasbourg, considers complaints concerning alleged violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by States Parties) not enhanced civil liberties in, say, Britain? The Court has ruled against the British government on frequent occasions, requiring it to amend its domestic law on a variety of Convention-protected rights, including the right of privacy, the right against the use of corporal punishment, and the rights of mental health patients.


Prejudiced judges?


In recent years, there has been a rising crescendo of complaint over the legitimacy - sometimes even the honesty – of particular judicial conduct. From political conservatives have come charges that judges are overriding the will of the people as expressed in statutes and referenda relating to abortions, gay rights, affirmative action, religion, and other subjects. From political liberals come charges of bias against women, sexual misconduct, harshness toward the interests of minorities, and forced imposition of deeply conservative political views. From both sides … come charges of overriding the people’s views and protecting the professional politicians by striking down term limits. From all venues – even from high-priced corporate lawyers – come charges of frequent tyrannical and arbitrary conduct by trial court judges. Misuse of position and even bribery are known to have sometimes existed. Beyond these matters, my thirty-four years as a law professor or a litigator have persuaded me that there is yet another problem, one that is widespread. It is that judges too often are unwilling to listen to facts or reasons. Rather, they start with predilections heavily favoring one side – predilections which they, of course, deny – and then prove impervious to facts and resulting reasons contrary to their bias ... When judges act on the basis of their prior predilections, ignore facts, and even make up supposed counter facts, they destroy a central tenet of the judicial system: decisions of cases based on facts rather than prejudice. They also … destroy faith in the judicial system … Prior judicial predilection and associated imperviousness to facts, judicial invention of purported counter facts and concomitant problems are among the most important problems of the judicial system today. It would be beneficial to the system, would prevent the law from being a hollow mockery of its promises, and would help maintain the faith of citizens, if judges were to stop ignoring facts in order to enforce their own predilections.



Professor Lawrence R. Valvel, ‘A Rebuke of Modern Judicial Practices’ (2005) Judicial Accountability Initiative Law News Journal 




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