Why judge

Every litigant gets a response - though oftentimes, and regrettably, after a lengthy and costly proceeding. But a reasoned response is ultimately forthcoming. The third element is the pursuit of justice according to law. The finding of facts, or the giving of directions to a jury with respect to facts, calls for great experience of the human condition.

The notion that judges are immured in an ivory tower, shut off from the activities, emotions, virtue and vice of ordinary life is sheer nonsense, as any observer of the sittings of a trial court would testify. Moreover, judges, most of whom have been successful advocates in litigation practices, have gained an unrivalled capacity to appreciate the facts and the nuances of those situations that arise in litigation in their chosen field.

The facts being fairly found, the law must be applied. As Lord Bridge of Harwich has observed 12 : "The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law.

Nor is it a function in which the demands of justice play no part. In a Parliamentary democracy, it would not be just for the courts to hold the law to be different from that laid down by Parliament 13 ; but neither should the Parliament be easily taken to have intended to create an unjust rule.

Accepting statute law as enacted by Parliament, the courts endeavour to give a just interpretation to a statute so far as its terms admit. And the common law is developed and declared so as to do justice in the conditions of contemporary society. Sometimes, abstract justice competes with, and triumphs over certainty which is itself a material element of justice.

Sir Stephen Sedley put the position dramatically 14 : "Law spends its life stretched on the rack between certainty and adaptability, sometimes groaning audibly but mostly maintaining the stoical appearance of steady uniformity which public confidence demands. The simple propositions of a student text book may suffice in some cases, but not in others. The modern judge possesses not only a general knowledge of the law but also skill in the interpretation of statutes and of the judgments of superior courts, awareness of the existence and limits of the leeway in judicial decision making, appreciation of community standards and, on occasion, appreciation of enduring community values and the susceptibility of legal rules to their influence.

Enduring community values is not a term masking a judicial assumption of legislative power. Though the term cannot be exhaustively defined, its content in a particular context is not reasonably open to controversy. For example, an enduring value of our contemporary community is that every person should be treated by the law with substantive equality, not merely formal equality. Another enduring value is that a person should not be liable to criminal punishment unless his conduct has breached an existing law and the person had some moral responsibility for that conduct.

If their terms permit, statutes are construed to accord with enduring community values 15 and common law rules that are inconsistent with those values are liable to be overruled The public expectation is that the law will be just. The judicial method reduces any antinomy between justice and law to a minimum and thereby seeks to fulfil that expectation.

Finally, the judicial method requires that, subject to narrow exceptions, every word that is uttered from the opening sentence of a case to the closing words of an appellate judgment be open to scrutiny.

Nothing must be hidden Justice is not a cloistered virtue. In Russell v. Russell 18 Gibbs J 19 expressed a long-standing doctrine when he said of the rule requiring proceedings to be conducted "publicly and in open view" 20 : "This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.

Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying on trial.

Those criticisms must be borne with such fortitude as the judge can muster. It is by manifest adherence to the basic elements of the judicial method - impartiality, procedural fairness, the pursuit of justice in application of the law and exposure to public scrutiny - that judges have commanded the confidence of the community they serve.

Public Confidence The earning of public confidence evokes skills and qualities of a high order: unquestioned integrity of character, human understanding, intellectual capacity especially in analysis, knowledge of the law, social awareness, wisdom, patience, industry, and a willingness to expose one's every judicial word and action to public observation and comment. Those who, possessing the necessary judicial skills and qualities, are appointed to be judges are an elite. I do not mean, of course, an elite demanding social rank.

I mean an elite because of their pivotal role in securing a peaceful and free society governed by the rule of law. Membership of that elite is no passport to an easy lifestyle. Judging is a lonely life. When the evidence is heard and the argument is over, when the books have been read, we come to the point of judgment.

No conscience other than the judge's own can be the guide. No pen but the judge's own can write the reasons for decision or sketch the summing up.

No expression of satisfaction can satisfy the judge unless the judge's own standards be satisfied. If the work be done properly, it earns the accolades - albeit seldom expressed - of colleagues who command our respect. The accolades of others, if forthcoming, may give encouragement according to our estimate of their insights.

The dispiriting criticisms that are sometimes offered have led some judges to think that they should undertake a public relations exercise to enhance the judicial image. I suggest that that is a mistake. In the first place, it is difficult to avoid responding to media inquiries that touch upon the decision of actual cases. Massey Coal Co. Even though the Supreme Court found that there was no evidence that the judge was biased, it still held that he had to recuse himself. For additional information on this case, see the LII's oral argument preview of it.

Please help us improve our site! No thank you. Parties in civil cases may be present if they wish, but are often absent. Witnesses give testimony about the facts in the case that are in dispute.

During their testimony, they sit on the witness stand, facing the courtroom. Because the witnesses are asked to testify by one party or the other, they are often referred to as plaintiff's witnesses, government's witnesses, or defense witnesses. The courtroom deputy, who is usually seated near the judge, administers the oaths to the witnesses, marks the exhibits, and generally helps the judge keep the trial running smoothly.

The court reporter sits near the witness stand and usually types the official record of the trial everything that is said or introduced into evidence on a stenographic machine. Federal law requires that a word-for-word record be made of every trial. The court reporter also produces a written transcript of the proceedings if either party appeals the case or requests a transcript to review. However, transcripts will not be available to jurors because there is not enough time to create a transcription.

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