Aesthetics, Culture, and the Whole Damn Thing

Cardozo School of Law

Aesthetics, Culture, and the Whole Damn ThingAuthor(s): Peter HeereySource: Law and Literature, Vol. 15, No. 3 (Fall 2003), pp. 295-312Published by: Taylor & Francis, Ltd. on behalf of the Cardozo School of LawStable URL: http://www.jstor.org/stable/10.1525/lal.2003.15.3.295 .

Accessed: 25/05/2014 12:15

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Cardozo School of Law and Taylor & Francis, Ltd. are collaborating with JSTOR to digitize, preserve andextend access to Law and Literature.

http://www.jstor.org

This content downloaded from 130.217.227.3 on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=taylorfrancis

http://www.jstor.org/action/showPublisher?publisherCode=cardozo

http://www.jstor.org/stable/10.1525/lal.2003.15.3.295?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


Law and Literature, Vol.

, No. 3, pages 295–

. issn 1535–685X. © 2003 by The Cardozo School ofLaw of Yeshiva University. All rights reserved. Send requests for permission to reprint to: Rights andPermissions, University of California Press, 2000 Center Street, Suite 303, Berkeley, CA 94704-1223.

295

Aesthetics, Culture, andthe Whole Damn ThingPeter Heerey*

Abstract. From a judicial perspective, the operation of law is a

ffected by legal culture and by aes-thetics, that is to say what impacts the senses. Communication to and from the judge is a

ffectedby the choice between morality and writing. Language, visuality, and humor are seen as aspects ofaesthetics and culture. The resultant effect on the internal psychology of judicial decision making isexplored in this essay adapted from an address to the International Conference of the Law & Liter-ature Association of Australia in .

When the organizers of this conference kindly (and perhaps courageously, inthe Sir Humphrey sense) invited me to speak, they said that the concerns ofthe conference in recent years have expanded from law’s relationship with lit-erature, narrowly defined to include its interaction with the broader realms of“culture” and “aesthetics.”

I think I know what “culture” means. But something about “aesthetics”triggered a nagging uncertainty. I consulted the Oxford English Dictionary1

and found that the term has been the subject of spirited lexicological combat.The older meaning, “of or pertaining to sensuous perceptions, received by thesenses,” receives a dismissive “obs” and has been superseded by “of or per-taining to the criticism of the beautiful.” This latter meaning apparently orig-inated with the German philosopher Baumgarten in the mid-eighteenth cen-tury but was rejected by Kant. However, the OED says that Baumgarten’s use“found popular acceptance and appeared in English after , though itsadoption was long opposed.” By , Hamilton was using the term in prettymuch its popular meaning today:



296

Law & L i terature •

Volume 15, Number 3

The leaders of the Aesthetic School in poetry have been styled

fleshly poets,delighting in somewhat sensually-suggestive descriptions of the passions.2

The leading protagonist was Oscar Wilde, who delighted in dandyishclothes, long

flowing locks, and promenading down Piccadilly holding a lily.According to Daniel Mendelssohn,

Wilde had become su

fficiently famous as a proponent of Aestheticism by hismid-twenties that he went on a two-year lecture tour of the United States, dur-ing which he gave tips to the Colonials on how to make life more aesthetic.3

But to be aesthetic (in this sense) did not necessarily connote delicacy. InLeadville, Colorado, the local miners invited Wilde down the mine to dinner.The first course was whiskey, the second course whiskey, and so on. But theminers ultimately found it was themselves who were drunk under the table.Leaving town the next day, Wilde came across his hosts in the street verymuch the worse for wear and counseled them against trying to outdrink anIrishman in the future.

Anyway, I shall hereafter use “aesthetics” in the Kantian, non-Baumgartian,pre-Wildean sense: pertaining to things perceptible by the senses as distinctfrom things thinkable or immaterial, that is to say to the product of “logic.”(As will be seen, the latter concept in a legal context is in itself often problem-atic.) I want to say something about: orality, language, visuality, and humor.Finally, I want to touch on the end target of all this culture and aesthetics: thejudge and the internal psychology of decision making.

O R A L I T Y

If we want to inform or persuade people, we can speak to them or write some-thing for them to read. The former process has some advantages. The listeneractually sees the speaker. As Haldar says, truth is “embodied and generated bya living presence.”4 The speaker’s persona emphasizes the speaker’s message.The speaker’s message is bound up with the way the speaker’s persona pre-sents. In some situations, there may be the possibility of dialogue; if thespeaker can answer queries of the listener, the message becomes all the moreconvincing.



297

Heerey •

Aesthet ics , Cul ture , and the Whole Damn Thing

Speech, however, has one particular disadvantage—it is not permanent.The impact may fade, like the memory of a delicious dinner. A judge some-times has to read a transcript of an oral argument. Not infrequently the read-ing is a little disappointing; what was striking and persuasive to the ear seemson paper orotund, repetitive, and banal.

One advantage of writing, despite the hindrances of modern technologysuch as dictation equipment, is that it encourages the revision, polishing, andclarification of form and substance. Lincoln’s draft of his Gettysburg addressis full of corrections and alterations. Although it was spoken, it is rememberednot because of the impressions passed on by those who heard it at the Gettys-burg Cemetery, but for its nobility of thought, deceptive simplicity of expres-sion, and exquisitely structured cadences.

In courts, the choice between the oral and the written form involves impor-tant historical and cultural factors. Additionally, the mode of discourse becomesa factor because it, though now trite to observe, reflects and affects power.

From its inception in eleventh- and twelfth-century England, the jury trialwas unavoidably an oral system. Jurors were usually illiterate. The case had tobe heard and determined while the judge was in the assize town. Hence thesharp division in the common law tradition between the preparations fortrial—pleadings, particulars, and the like—and the great set piece of the trialitself. Moreover, since only the parties and their lawyers could prepare thecase for the judge, the system was, of necessity, adversarial. So the culture isdifferent from the continental inquisitorial system in which there is a continu-ing investigation supervised by the judge, of which the examination of wit-nesses is but a part.

In recent times, there have been major changes in the conduct of civil litiga-tion in Australia. In the Federal Court, under the Individual Docket Systemintroduced in , each case is allocated at filing to the docket of a particularjudge who deals with all preliminary issues, such as arguments about plead-ings or discovery, and then conducts the final hearing. So in a sense, the trialcommences before that judge when the original application is filed.

Almost invariably nowadays the witnesses provide written statements oraffidavits on which they may be cross-examined. They do not give oral evidence-in-chief in the traditional way. But the theatricality of the trial process dieshard. There has never been a jury trial in the Federal Court since its inceptiontwenty-five years ago.5 Except for personal injuries and defamation cases, civiljuries have long since disappeared from the state and territory courts. Never-



298


Volume 15, Number 3

theless, it is striking how often commercial barristers, who have probablynever seen a live jury in their professional lives, cross-examine as though theywere determined to get a point across to the bright looking woman in the backrow or to smarten up the dozing chap in the front. Thus the witness mighthave asserted fact X in his written statement but the cross-examiner has a let-ter of the witness in which Y, the contrary fact, is stated. So there is elaborate“gate-closing,” as it is known in the trade: “When you wrote the letter of 1June, you knew this was an important issue? Yes. You wanted the letter to beas accurate as possible? Yes. So you made all the inquiries you thought werenecessary? Yes.” Etc., etc. Then with a triumphant flourish the letter is pro-duced, and the hapless witness is directed to fact Y. “So what’s the truth, whatyou say in the letter or what you say in your statement?” Etc., etc. “Ho, hum,”thinks the judge. The reality is that, a few weeks later in final submissions, thejudge will simply be asked to disbelieve the evidence of the witness as to Xbecause he said Y in the letter. The same point could probably be made, andwith equal effect, without any cross-examination.

Under the Individual Docket System, interlocutory squabbles over partic-ulars, discovery, and the like have greatly diminished. Because everybodyknows the judge hearing such a dispute will be conducting the trial, neitherside wants to create an impression that they are obstructionist or pedantic oravoiding the merits. Shortly after the introduction of the Individual DocketSystem, two Melbourne barristers wrote to the Australian Law Journal makingthis very point as an argument against the system.6 I was able to

find their letterby using the ALJ ’s excellent index, which intriguingly commenced under thetitle “Judges”:

appointment and removal, by whom,

asleep, time for objection,

case management, use of di

fferent judge to try case,

The barristers argued that a judge hearing the trial who has already beenexposed to it in pretrial warfare may have formed “strong and marked impres-sions about it—and the parties’ merits.”7 I do not doubt that this may well,indeed probably does, happen, but it is not necessarily a bad thing. Althoughjudges and lawyers will tell you there is no such thing as a technical point—only a good point or a bad point—judges are human. Most judges wouldmuch prefer to arrive at a judgment that is legally correct but at the same time



299

Heerey •


ethically satisfying and “right.” As the old saying goes, “inside every judge beatsthe heart of a juryman.” Persistent obstructionism provokes in the most detachedand dispassionate judicial mind the suspicion that an element of counsel’s tacticsmay be a consciousness of the lack of merits. The possibility of this aesthetic reac-tion is as likely to occur to a judge in the trial itself as in pretrial maneuvering.

An aspect of the common law tradition of orality is the great importanceattached to the witness’s “demeanor,” used in what the Shorter Oxford 8 notes as“the usual current sense,” namely “manner of comporting oneself towardsothers; bearing.” Appellate courts give great deference, or say they do, to theunique position of the trial judge who sees and hears the witness.9 Here surelyis aesthetics in its purest form. How the witness looks and sounds to the judgeis to be accorded great value. (Demeanor in this context is to be distinguishedfrom aspects of a witness’s performance, which might be readily discerniblefrom the transcript, such as evasive answering.)

Lawyers and judges carry in their minds a stereotype of the “good wit-ness,” a person who stands up straight, looks the judge in the eye, speaks uploudly and clearly, does not appear hostile or argumentative, shifty or dim.One of the best “good witnesses” I have seen gave evidence in a celebratedcase at the High Court in London in . The witness, the plaintiff in the case,stood up and spoke up. He played the straightest of bats.10 The leading Silk11

cross-examining got nowhere. I was not surprised when at the end of the trialthe jury returned a thumping verdict for the plainti

ff, one Je

ffrey Archer. Aslater events showed, his evidence was a pack of lies, and Lord Archer is nowserving four years for perjury. The case is also memorable from an aestheticpoint of view for the notorious observation of the trial judge to the jury aboutJeffrey Archer’s wife, “Did she not have a certain fragrance?” or words to thateffect. The jury was invited to ponder the unlikelihood of the plaintiff turningfrom Lady Archer to “cold, rubberised sex in a hotel room.”

The choice between the oral and the written may be affected by perceptionsof the objectives of the process or by competing power imperatives. A vividillustration of this is found in Shoshana Felman’s article, “A Ghost in theHouse of Justice: Death and the Language of the Law.”12 The author contraststhe Nuremberg trials of Nazi leaders in

with the trial of Adolf Eichmannin Israel in

.Both prosecutors used the trial to establish “monumental history.” At

Nuremberg, a deliberate choice was made to rely on documentary evidence.In the words of the chief prosecutor, Justice Robert Jackson,



300


Volume 15, Number 3

The documents could not be accused of partiality, forgetfulness, or invention,and would make the sounder foundation, not only for the immediate guidanceof the tribunal, but for the ultimate verdict of history.13

But novelist Rebecca West, covering the trial for the New Yorker, found it“insu

fferably tedious,” and another observer described it as “an excruciatinglylong and complex trial that failed to mesmerize a distracted world.”14

In the Eichmann trial, there was a great deal of documentary evidence butalso substantial testimony.

The reason he decided to add living witnesses to documents, the Israeli prosecu-tor Gideon Hausner explained, was that the Nuremberg trials had failed to trans-mit, or to impress on human memory and “on the hearts of men” the knowledgeand the shock of what had happened. The Eichmann trial sought, in contrast, notonly to establish facts but to transmit (transmit truth as event and as the shock ofan encounter with events, transmit history as an experience). The tool of law wasused not only as a tool of proof of unimaginable facts, but, above all, as a compel-ling medium of transmission—as an e

ffective tool of national and internationalcommunication of these thought-defying facts. In comparing thus the evidentiaryapproach of Nuremberg to his own legal choices, the Israeli prosecutor wrote:

There is an obvious advantage in written proof; whatever it has to conveyis there in black and white . . . Nor can a document be . . . broken down incross-examination. It speaks in a steady voice; it may not cry out, but neithercan it be silenced.

. . . This was the course adopted at the Nuremberg trials . . . It was . . .e

fficient . . . But it was also one of the reasons why the proceedings therefailed to reach the hearts of men.

In order merely to secure a conviction, it was obviously enough to let thearchives speak . . . But I knew we needed more than a conviction; we neededa living record of a gigantic human and national disaster.15

Great historical productions, like the Nuremberg and Eichmann trials,seem remote from the quotidian practice of the law. Legal culture and aesthet-ics change incrementally as a result of changes in the law, court rules, profes-sional practices, the personal styles of leading practitioners, and the re

flectionswithin the profession of changing values and attitudes in the larger society.

In that setting, there has been a quiet tussle between the oral and the writtenprocess. One example, already mentioned, is the use of written witness state-ments or affidavits. Certainly they save court time; it takes but a moment for an



301

Heerey •


a

ffidavit to be formally read (counsel merely says, “I read the a

ffidavit of X”)or for a statement to be verified on oath. However, the preparation of affidavitsor statements is costly. Beneath the seamless, persuasive flow of narrative,helpfully sign-posted by subheadings, there lie the hidden labors of solicitorsand counsel. A relatively humble corporate functionary, who might have writ-ten a now inconvenient letter, explains his or her state of mind at the time withthe most exquisitely nuanced shading.16 More importantly, the court loses thetruth-revealing bene

fit of the witness in the isolation of the witness box givingan account unprompted by leading questions.

Another example of this tension between oral argument and written sub-missions occurs with appeals. In the United States, the written argument—thebrief as they call it—is paramount. Oral argument is limited to no more thantwenty or thirty minutes a side in all but the most exceptional cases, and somewould see even this as excessive.17 Judge Myron Bright in his article, “ThePower of the Spoken Word: In Defence of Oral Argument,”18 defends currentpractice in the U.S. Court of Appeals for the Eighth Circuit against ProfessorRobert J. Martineau, who had proposed the virtual elimination of oral argu-ment as an integral part of the decision-making process.19 In many federal cir-cuit courts of appeals, oral argument occurs in a minority of cases. This is,however, more the product of necessity and the needs of court managementthan any preference for the written form.

In appeals to the Full Fourt of the Federal Court of Australia, the practicecurrently requires the filing of what is termed an “outline of submissions,”which should not ordinarily exceed ten pages of double-spaced typing unlessleave is obtained to lodge a more lengthy document. The hearing of appealstakes much longer than in the United States. For example, the United StatesCourt of Appeals for the Federal Circuit might deal with three or four appealsin patent cases in one morning. In our Federal Court, the hearing of a patentappeal, and not necessarily one involving cutting-edge technology, might taketwo to three days.

Disparate interests of power and status are at work. Barristers like oralargument; it gives them greater control and prominence. Often counselignore the written submissions lodged, even if they have played a substantialpart in their preparation. Solicitors (and occasionally institutional clients suchas governments) like written submissions. The case is seen as more of theproduct of the firm or the client. The views of judges vary, except that almostuniversally they do not like long arguments or long submissions.



302

Law & L i terature • Volume 15, Number 3

But I think that overall most Australian litigation professionals—whetherjudges, barristers, or solicitors—would not like to adapt the U.S. model. Insuch a model, as one critic remarked, Harvard grads on Wall Street corre-spond with Harvard grads in Washington: law firms write elaborate briefs thatare answered by elaborate judgments largely drafted by judges’ clerks.

The real benefit of oral argument is the capacity for interaction betweenbench and counsel: the Socratic dialogue to use the favored lofty characteriza-tion. This can sometimes be a little one-sided. As the bright child, taken alongto see a High Court special leave application day, asked her parents: “Whowere those people in wigs who sometimes interrupted the judges?” Neverthe-less there is no real substitute for the opportunity to test an argument face toface, to enlighten understanding and to explore the implication of proposi-tions advanced.

L A N G U A G E

Much of the language of the law has long been criticized as arcane, exclusion-ary, the private preserve of a priestly caste, and so forth. A true bill? I respondwith the lawyer’s words that have infuriated clients throughout the ages: it alldepends.

Obvious targets are Latin and technical terms. However, we need notadopt an unduly ideological approach. Inter alia means “among other things.”The Latin expression does not carry any further nuance of meaning or usefulcompression. It could be banished without loss. Mutatis mutandis, however,may deserve different treatment. It means “making all changes as are requiredto accommodate the difference in context or subject matter.” Quite a mouth-ful. So mutatis mutandis is an expression that serves a useful function. Itdoesn’t take long to know what it means, and once you do it is no differentfrom learning a new English word or phrase.

Latin expressions—such as prima facie case or forum non conveniens—convey quite complex legal concepts, but then so does the English word“consideration,” which has a technical legal meaning related to but extend-ing well beyond its meaning in ordinary speech. As one of the minor Romanpoets wrote in a recently discovered epic, Relaxate amici lingua Latina mag-num negotium non est, which roughly translates as “Chill it, guys; Latin’s nobig deal.”



303

Heerey • Aesthet ics , Cul ture , and the Whole Damn Thing

One of my early encounters with legal Latin at the Bar involved Mr. LeoFroude SM. He was a tough, knockabout magistrate but quite an accom-plished linguist. I once saw him closely cross-examine a witness on the subtle-ties of a letter written in Italian. On another occasion, I appeared in a case overa collision between two cars in a shopping center car park. My opponent sug-gested that the case called for the application of the doctrine res ipsa loquitur.The response of Froude SM to this sophisticated advocacy was brutal: “Resipsa loquitur. Vere, sed quicunque dicit? The thing speaks for itself, but whatthe hell does it say?”

One aspect of legal language—language used by lawyers—that seems tohave received little criticism or even attention is what I might call the archaicvernacular. One example is the employee said to be acting outside the courseof employment and thus going “on a frolic of his own.” The word “frolic”means (according to the Australian Macquarie Dictionary 20) “merry play; gay[presumably not in the modern sense] prank; gaieties; fun.” “Frolic” seems tohave been irresistible to lawyers debating the inherently unfunny and ungay(in either the ancient or modern sense) topic of whether a tort was committedwithin the scope of the tortfeasor’s employment.

Another favorite arises in the context of an appeal that will have no practicalbenefit for the appellant; for example, if the appellant is sentenced to a month’simprisonment, but the appeal is not going to be heard for three months. Law-yers always seem to say in such circumstances that the appeal will be “ren-dered nugatory.” This is not a technical legal term but an ordinary English wordthat seems to have disappeared from most ordinary speech. Perhaps again thereis a subliminal yearning to lighten up dreary legal discourse: “nugatory” mayconvey thoughts of that delectable confection known as nougat.

Some usages have an element of ritual or liturgy. Such as “my learnedfriend” when used to describe a fellow practitioner who the speaker believes tobe a barely literate casual acquaintance. This English and Irish usage has sur-vived in Australia although not, I think, in the United States and Canada. It isharmless enough and perhaps serves a useful civilizing and formalizing func-tion in a setting where emotions sometimes need to be restrained.

But I do not have the same sympathy for another deeply embedded culturalritual: the use of “with respect.” The amount of respect actually held variesinversely with the fulsomeness of expression. “With respect” means “you arewrong.” “With the greatest respect” means “you are quite wrong.” “With theutmost and unfeigned respect” means “send for the men in white coats.” A



304


further complication is that respect is also expressed when you agree withsomebody, on the basis presumably that you would otherwise seem patroniz-ing or presumptuous. The whole thing is contrived and pompous (withrespect to those who think otherwise).

V I S U A L I T Y

In his thought-provoking article to which I have earlier referred, Piyel Haldarargues that the use of scientific rationality and the proliferation of differenttypes of technology in the courtroom open up the very wound modern lawhas attempted to address, namely irrationality.21 In the courtroom, stories aretold about events said to have happened at an earlier time and in a differentplace. Modern technology might be thought to fulfill a desire yearned forsince trials began. In the time and place of the courtroom, the truth of otherevents can be replicated free from the defects of imperfect observation, forget-fulness, bias, and the like.

In terms of cognitive understanding, rhetoric is deemed to be debased, and,therefore, irrational. It is also deemed to be antithetical to the values of due pro-cess and scientific rationality which seek to deny or flatten the power structuresand thereby preserve the active dignity of individuals.22

But scientific rationality cannot escape being structured by rhetoric. Haldarcites the Rodney King case, in which four police officers in Los Angeles werecharged with the use of excessive force on King.23 The police officers did notknow that the incident was videotaped by a passer-by. Although the videocaptured the physical actions, it did not convey the (mistaken) illusion of thepolice officers that King was affected by drugs.

In Australian Consolidated Press Ltd v. Ettingshausen, the New South WalesCourt of Appeal was asked to set aside a jury libel verdict in favor of AndrewEttingshausen, a well known Rugby League player.24 The appellant had pub-lished a grainy black and white photo showing Mr. Ettingshausen in theshower with other players after a game. The jury had accepted the argumentthat this was defamatory because readers of the magazine would think that Mr.Ettingshausen had consented to the publication of this revealing photograph.Just what the photo did reveal was itself an issue. As Kirby P.25 said, “Althoughsomewhat obscure, it is possible . . . to see the contours of Mr Ettingshausen’s



305


lower body and penis.”26 Later his Honour accepted that “an uninterestedreader could well pass the photograph without noticing the penis.”27

One of the appellant’s complaints was that the jury was shown an enlarge-ment of the magazine photo amounting to almost one square meter and alsosaw a projection of the slide from which the photograph was taken “with thelights of the courtroom turned down.” Kirby P. thought that, among otherthings, had resulted in a miscarriage. The majority (Gleeson C.J. and ClarkeJ.A.) disagreed, although all judges held the damages ($,) were, inGleeson C.J.’s words, “over the top.” (The plaintiff was awarded more forpeople thinking he had consented to his penis being photographed than had itbeen chopped off in an industrial accident.) So while the enlargement and slideprojection were scientifically accurate, in rhetorical terms the jury was beingshown something quite different from that seen by the reader of the magazine.There had been, so to speak, the erection of a false issue.

H U M O R

Since , the Victorian Bar has published a quarterly journal called VictorianBar News. At a very early stage, members of the Bar started to send in reportsof lighter moments in court. These became the subject of a regular featureknown as Verbatim, which means literally, literally. The column recordedmany pieces of genuine and intentional wit but also some prime examples ofdouble speak, obfuscation, foolishness, and double entendre. One examplewas the exasperated magistrate who responded to the defendant’s plea fortime to pay with, “Time to pay? What do you guys think we’re runningaround here—a hire purchase institution?”

Another immortalized the appearance by Elizabeth Curtain, now a judge ofthe County Court of Victoria, in a Magistrates’ Court “crash and bash” claim:

Curtain: And on what road were you travelling?Complainant: On Dandenong Road.Curtain: Where were you going?Complainant: To my girlfriend’s.Curtain: Is that a route you’re familiar with?28

But some legal stories that are passed down have their origin lost in obscurity.What perhaps is more interesting is what they tell about legal culture, values,and attitudes.



306


One such story turns on the legal maxim in pari delicto potior est conditiodefendentis, which means that where both plaintiff and defendant have a dis-pute arising out of some illegal activity in which they both participated, thecourt is not going to lend its assistance to the plaintiff. The parties are left totheir own devices, and thus the defendant wins.

In its original form, the story is sourced in the west of Ireland, where theplaintiff is pursuing a particularly dubious claim. The judge (this is an oldstory) is Ascendancy, Anglo-Irish, Trinity College. The plaintiff’s barrister isa wily Celt. The exchange goes something like this:

Judge: Mr Houlihan, is your client aware of the maxim in pari delicto potior estconditio defendentis?

Counsel: My Lord, in the bogs of Connemara they speak of little else.

I recently saw that story reported as starring F.E. Smith K.C. and the plain-tiff’s milieu as being the back streets of Bermondsey. But you will note a fea-ture regularly recurrent in legal stories: the fall guy is the judge. The hero isthe counsel, or occasionally the witness, as in the following encounter, alsoIrish. Here the witness is called to give evidence of an admission by a defen-dant charged with stealing a pig:

Prosecutor: What did the defendant say?Witness: He said he stole the pig.Judge (irritably): Come, come, he didn’t use the third person, did he?Witness (puzzled): On no my Lord, there were only the two of us there.Judge (even more irritably): No, no, I suppose he said “I stole the pig.”Witness (horrified): Oh no my Lord, he never mentioned your Lordship’s

name.

Recently Erich Segal, sometime professor of classics at Yale but perhapsbetter known as the author of Love Story, has written a history of comedyrather gloomily entitled The Death of Comedy. In a review of that work in theNew York Review of Books, Jasper Griffin, professor of classical literature atOxford, notes the subversive strain in classical comedy.29 He cites the plot ofPlautus’s Asinario (The Comedy of Asses):

The father having financed his son’s purchase of a slave girl on condition ofenjoying her himself is set up by his own slave and overheard by his well



307


dowered wife as he sweet talks the girl and denounces his wife ’s unattractive-ness. Wife, son and servants burst in chanting “Get up lover boy come onhome!” as the old wretch stammers his desperate excuses and slinks away to hispunishment, leaving the girl to his son.

Griffin notes:

Such scenes must have delighted an audience subject to the heavy pressure ofRoman morality. Women, young men, slaves; all can make fool of the heavypaterfamilias, who in real life was so dominant. For a moment they can defy thecode which repressed the passions of even the privileged.

So the fact of life is that judges do have a unique power in our society. JohnHoward,30 Kerry Packer,31 and Alan Jones32 are all powerful men. But theycannot send you to jail or make you bankrupt or take your kids away from you.The judge always wins. True it is you can appeal, but that only means thatother judges win. So making judges the butt of legal jokes can be seen as somemodest form of underground protest.

D E C I S I O N M A K I N G

Judges these days tend to produce a lot of judgments. In our court, a typicaloutput in the course of a year might be eighty to ninety. Obviously thesewould vary greatly in length. But after a trial with evidence one might expecta judgment of at least twenty to thirty pages and often much more. My ownrecord so far is .33 In courts where, unlike the Federal Court, judges sit withjuries, there might be substantially fewer judgments, but judges in thosecourts would have to prepare charges to juries, a very demanding task.

So it’s not surprising that most judgments tend to follow a similar template.The issues are defined, evidence is summarized, findings of disputed facts aremade, law is stated and then applied to the facts as found, and the judgmentconcludes with the formal terms of the actual orders made.

A judgment in such a form presents as an inexorable, ordered march tojudgment. Rarely is hesitation or doubt expressed or even hinted at. The judgehas followed a linear path dictated as to form, by the traditions of the judgmentcraft, and as to substance, by the self-propelling correctness of the successfulparty’s case.



308


In truth, the messy internal decision-making process often tends to beliethe seeming serenity and inevitability of the written judgment. My experienceis that at some stage before the end of the hearing, and not infrequently wellbefore, I have come to a fairly firm conclusion as to which side should win. Butthis is not always the case. I have had the experience, and other judges havealso, of starting to write a judgment not knowing how it will end or starting towrite with one outcome in mind and ending up with the opposite conclusion.

But that would be the exception. From the time a judge first picks up the filefor a case, ideas, however inchoate, are forming. Hypotheses, however tenta-tive, are erected. At some stage these shape into a firm provisional view. Per-haps counsel’s pointing to a particular fact or argument gives the judge a newplatform from which to view the case. Sometimes an issue is at bottom largelyimpressionistic. Are these words defamatory? Is this receipt capital orincome? Is this alleged invention the result of a truly inventive step? Vastlearning is available to direct and assist the judge, but the conclusion often isone of feeling, instinct, intuition—or aesthetic.

One of the first Full Court cases I sat on was Siddons Pty Ltd v. The StanleyWorks Pty Ltd.34 The respondent’s socket tools bore the word “Stanley” andimmediately below that the word “Australia.” Would that convey to potentialpurchasers, or at least a significant number of them, that the tool was made inAustralia? If so, the respondent had engaged in misleading and deceptive con-duct in contravention of the Trade Practices Act (Cth); the tool had not infact been made in Australia. Wilcox J. and I thought the answer was yes. Thetrial judge, Jenkinson J., and the other member of the Full Fourt, Burchett J.,thought the opposite. I suppose a cynic might say Siddons won because theyhad two judges in the right place. All the judgments contain careful reasoning.But in the end I don’t think you can say one side is “correct” in a scientific ormathematical sense. The actual decision in cases like this often turns to a largedegree on gut instinct or anima intestini as the maxim has it.

Siddons is also typical of a very common judicial exercise, namely postulat-ing how “the community,” or a particular segment of the community, such asthe purchasers of socket tools or a “significant” section of such a segment, mightreact to something. Usually judges are very keen on the rules of evidence—thatvast body of law that determines what things constitute “evidence” and whatjudges and juries can do with “evidence” when seen or heard. Wigmore usedup ten volumes on the subject. A friend of mine, when studying for the BCLat Oxford, was subjected to twelve tutorials on the topic of corroboration



309


alone. Yet sometimes it is accepted that the judge, with no empirical basis atall, can call in aid “community” values or opinions as something axiomaticand self-evident, even where there is some ground for thinking the commu-nity’s actual view, if anybody took the trouble to ascertain it, is either non-existent or the complete opposite of what the judge proclaims.

In Kable v. Director of Public Prosecutions (NSW ) the High Court had toconsider a NSW Act of Parliament specifically targeted at Mr. Kable (andnobody else).35 Under the Act, the NSW Supreme Court had to order Kable’sdetention for up to six months if it determined, on the balance of probabilities,that Kable was likely to commit a serious act of violence in future. The NSWCourt of Appeal unanimously upheld the validity of this legislation,36 but theHigh Court by a – majority struck it down. The majority reasoned:although the NSW Parliament could make a valid law for the imprisonment ofa particular individual (historically known as a Bill of Attainder), it could notinvoke the authority of the Supreme Court because that would “compromisethe institutional impartiality” of that court.37 The federal constitutional ratio-nale for this was that s (iii) of the Constitution provides for investing statecourts with federal jurisdiction and thus no state government or legislaturecould act in a way that “might undermine public confidence in the impartialadministration of the judicial functions of State courts.”38 To do so would“inevitably result in a lack of public confidence in the administration ofinvested federal jurisdiction in those courts.”39 This might be thought of as thevirgin bride theory of jurisdiction. The state courts are to keep themselvesnice and not engage in any nonjudicial hanky panky while waiting for the Mr.Right of s (iii) jurisdiction to come along.

In support of their conclusion, members of the majority relied heavily onthe need for “public confidence in (the judicial) process.”40 Legislation mustnot “sap the appearance of institutional impartiality and the maintenance ofpublic confidence.”41 McHugh J. thought that “ordinary reasonable membersof the public might reasonably have seen the Act as making the SupremeCourt a party to and responsible for implementing the political decision ofthe executive government that the appellant should be imprisoned withoutthe benefit of the ordinary processes of law.” Such a person could “justifiablydraw the inference that the Supreme Court was an instrument of executivegovernment policy” and thus “public confidence in the impartial administra-tion of the judicial functions of the Supreme Court must inevitably beimpaired.”42



310


However, this assessment of public opinion and the impact of the legisla-tion on New South Wales citizens’ confidence in their Supreme Court was notshared by the other experienced judges and lawyers involved in the case. Theargument that succeeded in the High Court was not presented by Mr. Kable’scounsel in the Court of Appeal and not raised by the members of that court(judges who might be thought to have extensive experience of the values andattitudes of New South Wales citizens). Nor did it appeal to the minority in theHigh Court (Brennan C.J. and Dawson J.). So perhaps it was not all that self-evident. As for the wider community, one suspects that any poll as to whetherMr. Kable should have been imprisoned under the Act would have producedthe overwhelming response, “Yes, and throw away the key.”

In , the Victorian Parliament passed similar legislation directed at oneGary David.43 The elected representatives of some two-thirds of the Australianpopulation have seen fit to pass Acts of this kind. Whatever you think about pol-iticians, at least they are experts in finding out what people think, or are likely tothink, about current issues. While lawyers and judges are justifiably proud oftheir historic role in protecting the unpopular individual from the passions of apopulist majority, there is a paradox in supporting that role by an appeal to anunproved (and inherently improbable) assessment of public opinion.

Reliance on logic in a judgment may conceal what is impressionistic andsubjective. Very often a fact-finding exercise will involve reasoning fromundisputed fact X to the existence or otherwise of disputed fact Y. Such a casewas Eshetu v. Minister for Immigration and Multicultural Affairs.44 The issue offact before the Refugee Review Tribunal was whether an alleged event inEthiopia—the arrest, detention, and beatings of twenty-five student leadersover three days—did or did not occur. In concluding that it did not occur, theTribunal reasoned that, if it had, it would have become known to some of theorganizations monitoring human rights abuses in Ethiopia and reported intheir publications. At first instance, Hill J. said that this conclusion “totallylack(ed) logic . . . (and) was so unreasonable that no reasonable tribunal couldreach it.”45 In the Full Court Whitlam J. thought that a contrary conclusion tothat arrived at by the Tribunal would have been “fantastic” and “border(ing)on the perverse.”46 Marked disagreements like this are not susceptible to reso-lution by any scientific process or logical formula.

Enthusiasts for a judgeocracy in which judges regulate the behavior of soci-ety by the administration of broadly formulated bills of rights need to keep inmind how unpredictable judges can be. Or, to put it more positively, judges



311


are human after all. Being human they are perhaps not all that well fitted forthe role of Platonic Guardian, to use the memorable phrase of Judge LearnedHand.

The most important things about law are not to be found in books. In GoreVidal’s recent novel The Golden Age, a character is asked: “Do you feel thathistory repeats itself?” His reaction, as captured by Vidal, is as follows:

Peter was annoyed by the verb. Intellectuals were not meant to feel. They weremeant to think. To imagine. To deduce.47

I don’t think Vidal really meant this. In fact I’m sure he didn’t.

* Address given at the th International Conference of the Law & Literature Association of Australia,“Mediating Law: Theory–Production–Culture,” Nov. –Dec. , . The assistance of DavidO’Callaghan, Peter Rush, and my associate, Jonathan Carter, in preparing this paper is gratefullyacknowledged. Those attending the conference of the Law & Literature Association of Australia includejudges, lawyers, and academics from law, English, and other disciplines such as history and sociology.

. Oxford English Dictionary, nd ed., s.v. “aesthetics.”. Id., s.v. “Aesthetic Movement.”. Daniel Mendelssohn, review of The Importance of Being Earnest, by Oscar Wilde, New York Review of

Books, Oct. , .. Piyel Haldar, “The Return of the Evidencer’s Eye—Rhetoric and the Visual Technologies of Proof,”

/ Griffith Law Review – (), at .. There is power under s of the Federal Court of Australia Act (Cth) to direct trial by jury; a few

applications for jury trial have been made but none granted.. Letter from M. Bevan-John and J.A. Magee quoted by the Hon. Justice P. W. Young, “Current Issues,”

Australian Law Journal ‒ (), at .. Id., at .. Shorter Oxford Dictionary (Oxford: Oxford University Press, ), s.v. “demeanor.”. Abalos v. Australian Postal Commission (), CLR .

. A metaphor from cricket: a batsman wishing to play defensively should hold the bat vertically.. Queen’s Counsel: a barrister of this rank wears a silk gown.. Shoshana Felman, “The Ghost in House of Justice: Death and the Language of the Law,” Yale Jour-

nal of Law and the Humanities – ().. Id., at .. Id., at .. Id., at ; emphasis in original.. For further discussion of the art of affidavit preparation, see an earlier article of mine: Peter Heerey,

“Storytelling, Postmodernism and the Law” Australian Law Journal – (), at .. The Supreme Court of the United States first required parties to submit a brief in and required

briefs to contain argument in . Even by the court had adopted a rule limiting oral argument totwo hours. See William H. Rehnquist, “From Webster to Word-Processing: The Ascendance of theAppellate Brief,” Journal of Appellate Practice and Process ().



312


. Myron Bright, “The Power of the Spoken Word: In Defence of Oral Argument,” Iowa Law Revue ().

. Id., at .. Macquarie Dictionary (Sydney: Macquarie Library, ), s.v. “Frolic.”. Supra note at .. Id., at .. Id., at .. Australian Consolidated Press Ltd v. Ettingshausen (NSWCA, unreported, October , ) (Austl.).

Australian legislation and cases can be found at www.austlii.edu.au.. Judges of the Federal Court and the High Court of Australia have the title Justice, and are referred to

in publications by the post nominal J. or C.J., e.g., Brown J., Smith C.J. A judge on a state court ofappeal is Jones J.A. The president of such a court is Thomas P.

. Supra note at .. Id.. In Australian English, the word “route” is pronounced as “root,” which is also a vulgar synonym for

sexual intercourse.. Jasper Griffin, review of The Death of Comedy, by Erich Segal, New York Review of Books, July , .. Prime minister of Australia.. Billionaire media magnate.. Talk show radio presenter.. See (if you have an excess of time) Henderson v. Amadio Pty Ltd [No ] () FCR (Federal Court

of Australia).. Siddons Pty Ltd v. The Stanley Works Pty Ltd. () FCR (Federal Court of Australia Full

Court).. Kable v. Director of Public Prosecutions (NSW ) () CLR .. Kable v. Director of Public Prosecutions () NSWLR .. Supra note at .. Id., at .. Id.. Id., at per Gaudron J.. Id., at per Gummow J.. Id., at per McHugh J.. See the Community Protection Act 1990 (Vic).. Eshetu v. Minister for Immigration and Multicultural Affairs () FCR (Federal Court of Austra-

lia Full Court).. Eshetu v. Minister for Immigration and Ethnic Affairs () ALR at (Federal Court of

Australia).. Supra note at .. Gore Vidal, The Golden Age (New York: Doubleday, ), .



Documents

Aesthetics, Culture, and the Whole Damn Thing