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Book Review: Thomas’s muscular take on the project of judging

By Steven | June 27, 2008

“The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles”

By Justice E.W. Thomas

Cambridge University Press

Don’t be put off by the scholarly title. For anyone with an interest in judging, this is a readable and provocative critique of the way many judges go about their job. Justice Ted Thomas’s views about his craft are forthright, colourful, and often scathing. Here’s a typically acerbic example: “It is remarkable that, even today, judicial opinions that are in substance contrary to plain common sense, and even absurd, will be honoured as being ‘legally sound’”.

These views – and their muscular style – will come as no surprise to those familiar with Thomas’s tenure as a judge of New Zealand’s High Court and then Court of Appeal (he retired in 2001 and has occasionally sat on our newly minted Supreme Court). He was by far the most frequent dissenter on a Court of Appeal he describes as “notably conservative”, and his dissents were marked by differences of approach as well as outcome. Thomas scoffed at narrow, technical arguments, focusing instead on the ends of justice and the needs of modern society. For Thomas, the law is a tool to be wielded to serve society, and not simply a factory that churns out neat legal answers according to its own internal mechanics.

Thomas set out his judicial methodology in a series of articles while he was still a judge. This book assembles and refines his arguments, presenting a manifesto for judges around the common law world. At its heart is an attack on a judicial methodology known as “formalism”, which Thomas describes as a tendency to “regard the law as a system of self-contained, internally rational and predictable rules” which provide correct and predictable answers to legal issues.

Most of us probably picture the law like this, seeing it as a reservoir of rules sourced from statutes and cases of yore, dipped into by judges seeking solutions to legal issues. We figure that the law is vast and seamless and coherent and neutral, and yields objectively correct answers to those with legal training. Thomas says judges know this is a “fairy tale.” In reality, the law is “all too often hopelessly vague, needlessly complex, duly burdened with layers of distinctions, and self-evidently in irretrievable disarray.”

Judges, then, are faced with a myriad of choices: Is this fact proved? Is that fact significant? Which earlier cases are relevant? What’s the meaning of this phrase? How should the issue be cast? What’s the underlying principle? How should it apply in this case?

The answers to those questions are seldom dictated by the existing law, says Thomas. The upshot: judges themselves make law, and they do it all the time. And yet, part of the ethos of judging is to deny this, and pretend that the outcomes reside in the law itself. Saying they are driven to particular outcomes by “the law” gives judges “comfortable immunity from responsibility,” says Thomas. It means they are dishonest about the real reasons for the choices they make. Or it means they make bad choices, hog-tied by cases from an older age that have lost their relevance to modern society. “It is better, it seems, to belong to the priesthood and conform to its rituals than to carry the cross for justice and modernity in the law,” he writes.

This sort of religious imagery pervades his critique: Thomas rails against the “piety of precedent” and the “idolatry of certainty”. He thinks judges who are obsessed with rules and precedents and right answers are worshipping a false God, preaching the “rigid Gospel” of formalism. Thomas paints an unflattering picture of formalist judges “venerating certainty”, shrinking from the big picture, happily fitting facts to rules and hoping for justice but washing their hands of responsibility if the outcomes prove harsh. He calls this reasoning, in various contexts, “hide-bound”, “insensitive”, “dishonest”, “self-satisfied”, “blind”, “ill-considered and ill-informed”, “simplistic and false”, “mean-spirited”, “inexcusable” and “silly”. He has written this book to stamp it out.

Thomas is certainly not alone in his criticism of formalism, and he draws on the views of other judges and theorists to make his case. Although he modestly disclaims any pretence of “undue scholarship”, Thomas examines and critiques the main schools of jurisprudential thought, attacking positivism and natural law theory, which tend to present the law as a set of rules, and drawing support from the realist movement, which depicts law as a product of what judges do.

Still, many of Thomas’s pronouncements are guaranteed to send shudders down the spine of those who fret about judicial activism and its effects on the certainty of the law:

Thomas’s critics believe that his approach will (as Thomas puts it) turn the law into a “formless, amorphous, inchoate, hideous, idiosyncratic pottage of half-baked ideas of no value to anyone seeking to order their affairs in accordance with the law or looking for the law to provide stability in an ever-changing world.” Thomas spends much of the book arguing that the fears about untrammelled judicial law-making are misconceived. Judges may not be elected, but this provides the guarantee of independence that is their great strength, he argues. They are accountable through their reasoned decisions and the appeal process. They need to reform the law occasionally – because Parliament frequently ducks that responsibility. They are constrained by a range of factors including the boundaries of “legitimate judicial reasoning”, the incremental, collegial nature of the law-generating process, and the community’s sense of values. Judges can still be guided by past cases – just not wedded to them.

In perhaps the most controversial part of his methodology, Thomas insists that the “just” result is usually readily discernable when a case comes to court, and that judges have an ability to understand the needs and expectations of the community, even though they tend to come from privileged, conventional, educated, white backgrounds. “Values generally, such as a conception of justice in a particular case, tend to be indifferent to different backgrounds, education, and social and economic standing,” he asserts. For Thomas, a judge’s job is to ensure that the law is developed and updated to reflect the community’s expectations of justice and modernity, and other values that the judge perceives as “enlightened”, and in particular, to protect the vulnerable from exploitation by those “unfairly taking or obtaining an advantage at another’s expense.”

Despite the constraints on judges Thomas details, I can’t help but wonder whether concepts like “justice”, “community expectations”, “fairness”, “exploitation”, and “enlightened values” ultimately sit rather more in the eye of the beholder than Thomas would have it. For my part, I found Thomas’s critique of formalism – and his call for more transparency and less game-playing with precedents – compelling, but his solution is problematic. What if some of the constraints on judges Thomas applauds are rooted in the formalistic attitude he loathes? But this debate is an important one, and much the richer for Thomas’s thoughtful book.

Topics: General | 3 Comments »

3 Responses to “Book Review: Thomas’s muscular take on the project of judging”

  1. Sanctuary Says:
    June 27th, 2008 at 1:04 pm

    To argue that the law is a tool to serve society and, therefore, we must be subject to judicial law making contains an obvious internal inconsistancy. Lawyers and judges are just as subject as any other element in society to group capture, and the idea that an unelected expert elite of technocrats should be elevated to position of equality to, or superiority over, the people as expressed in the house representatives is to my mind little more than an absurd power play. Like all technocrats, lawyers are as surely part of a priesthood with its own arcane language and rituals as any friar or preacher, and it is my view no priesthood can be trusted with any sort of executive veto. To believe other wise displays a reckless disregard of the collective wisdom of the common weal that underpins any democracy.

  2. Steven Says:
    June 27th, 2008 at 1:08 pm

    Hmmm. I guess you mean a “judicial veto”. Like the US Supreme Court has, for example. I’m informed that many Americans regard their country as a democracy.

  3. nigel_k Says:
    July 7th, 2008 at 7:28 pm

    Without formalism, law is just politics but with politicians who can’t be voted out.

    Thomas’s view, both in his book and his judicial decisions, is that judges are perfectly entitled to reform the law to suit their own political agenda, and if people don’t like it they can wait for them to turn 68.

    But Parliament is not helpless against this. If the Thomas approach is accepted, the logical consequence is that only people whose political views align closely with the party in power will be allowed to become judges and/or Parliament will give itself greater power to remove judges.


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