I don't know if Slawyers ever heard the wonderful comedy sketch by the '60's English group Beyond the Fringe (Peter Cook, Dudley Moore, Alan Bennett and Jonathan Miller) in which a coal miner bemoans his fate, and opines: "Yes, I could have been a Judge but I never had the Latin. I never had the Latin for the judgin'."
Seems that some parliamentarians are going to get to see whether Prime Minister Harper's nominee for the Supreme Court has the Latin, all in front of TV cameras so we can judge the coal miners for ourselves. " 'These are public figures with enormous power," [Prime Minister Harper] said. 'So, what's the problem with asking them a few questions?' " I'd like to see them dance, or maybe tell a joke. No harm in that, surely. Not much good in it either, though, I'd say.
Harper, presumably, would want to know about their judicial temperament. He's quoted as saying:
"Judicial temperament means, in my view, that when someone's a judge they're prepared to apply the law rather than make it. And that they apply it in a way that uses common sense and discretion, without being inventive."
I'd guess that Harper, who's not a lawyer, thinks he means this — that this is something that you can mean. But it's a hopeless point of view. And it would seem that even he holds a contrary view at the same time, for otherwise what's the point of the new inquisitory procedure; with this view you only need one question: are you prepared to refuse to make the law? Reject anyone who says no; and accept the first person who says yes. The law-applier's views and politics become irrelevant under this view, because they won't get used for "invention." "Common sense" will rule the day.
This is law as a thing, as discernable as a lump of coal capable of being dropped on someone's foot, as the Fringe sketch went on about. If all lawyers don't know that this is a foolish view of law, legal researchers certainly do. The thought that at the Supreme Court level you only have to blast away the dross to reveal the anthracite gleam of true law is downright nutty. And I hope the nominee, whoever he or she will be, makes that clear to the Prime Minister.
Well let's quote it in full then:
THE MINER'S SKETCH
The following bit was performed by the late Peter Cook as part of
Beyond the Fringe, a satirical British revue from the early '60s. Mr.
Cook often performed this monologue sitting on a small stool. He
always delivered it deadpan, staring blankly into the crowd:
I could've been a judge, but I never 'ad the Latin… I never 'ad the
Latin to get through the rigorous judging exams. They're very
rigorous, the judging exams, very rigorous indeed. They're noted for their rigor. People come out of them saying, "My God, what a rigorous exam!" And so I become a miner instead. I managed to get through the mining exams. They're not very rigorous. They're no rigor involved really. There's a complete lack of rigor involved in the mining exams.
They only ask you one question. They say, "Who are you?" And I got 75 percent on that. Of course it's quite interesting, gettin' out lumps of coal all day. It's quite interesting. You're given complete freedom to do what you like, an absolute free 'and, provided you get out a two-ton of coal every day. But the method you do it, you can use any method open to you. Hackin' and hewin' is the normal one. Some people prefer the hackin', others the hewin'. Some people do the combination.
I'm a combination man myself. I do the hack an' hew both. Then there's running at the coal face with your 'ead – one of the worst methods, know as the Bad Method of getting out coal. There there's scrabblin' at it with you bare 'ands, the Almost as Bad Method of getting out coal. And there's myriad others.
It's quite a varied life you 'ave down there. The trouble with it is,
the people! They're extremely boring conversationalists, extremely
boring. All they talk about is what goes on in the mine. Extremely
boring! If you're searching for a word to describe what goes on, down the mine, "boring" would spring to your lips. They go on and on! If ever you want to hear a boring conversation, just pop down the mine, there it'll be. Things like:
"Hello, I've found a bit of coal."
"Have you really?"
"Yes, no doubt about it. This black substance is coal all right."
"Jolly good, the very thing we're looking for."
It's just not enough to keep the mind alive, is it? I sought solace in
the printed page, quite frankly. I'm quite interested in the world of
literature… But the trouble is, all this knowledge I've got out of,
is useless – useless as regards to judging. They require Latin for it.
I wish I'd 'ad it because it's safer work, judging, than mining.
You're not troubled by falling coal, for one thing… You get judges
remarking on it. They say, "Hello, no much coal falling these days!"
And what's more, being a miner, as soon as you're too old and tired and ill and sick and stupid to do your job properly, you 'ave to go.
But the very opposite applies to judges – so all in all, I'd rather
have been a judge than a miner.
I qualified as a lawyer in England in 1972. My admission certificate was signed by Lord Denning, who was surely the antithesis of Harper's idea of a judge. My tutor at Law School used to say *And now we come to another example of Denning versus the law.\
I was lucky enough to hear him speak to a small group of local government lawyers some years later. His own words were \I never let the law stop me from doing what I thought was right. Mind you, since I was elevated to the Court of Appeal, my chances of doing what was right have shrunk to 2-1 against.\ A marvelous man; even though sometimes he went too far, the Bench, and the law, would have been immeasurably poorer were he to have been excluded,as he surely would have been under Harper's guidelines.