The “Human Excellence” of Judging

The decision by Justice O’Donnell in R. v. Duncan (on SLAW here) has gained some notoriety in the legal community ((Katie Daubs, “Legal Decision with literary flourish and dry wit making the round…”, Toronto Star, March 29, 2013) and was the subject of a SLAW post by Simon Fodden (The Judge’s Tale, April 2, 2013). In his post Simon referred to a discussion on the Canadian Legal Ethics Listserv, and to criticisms made of Duncan there. I was one of those critics, and will explain in this column my claim that when a judge writes a judgment like Duncan he abandons his judicial craft. He commits what Lon Fuller describes as a violation of the “morality of aspiration” – a failure to act as he ought to when “functioning at his best” (Lon Fuller, The Morality of Law, 2d. ed. (New Haven: Yale University Press, 1964) p. 5).

For those unfamiliar with the judgment, Duncan was charged with resisting arrest, and was acquitted by Justice O’Donnell because the arrest was unlawful, and a citizen may lawfully resist an unjustified arrest. In defending himself Duncan employed what Justice Rooke in Meads v. Meads, 2012 ABQB 571 (CanLII) described as “Organized Pseudo-legal Commercial Arguments”. Promoted by internet “gurus,” those arguments usually have litigants assert non-participation in civil society so that the state, including the legal system and the courts, has no jurisdiction over them. In his judgment Justice O’Donnell said a variety of things in rejecting the OPCA position, two of which give a flavor for the decision:

•  “It has been said that, given enough time, ten thousand monkeys with typewriters² would probably eventually replicate the collected works of William Shakespeare.³ Sadly, when human beings are let loose with computers and internet⁴ access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.⁵”

² For readers under the age of thirty or so, the ‘typewriter’ was a mechanical device used for creating documents that pre-dated the computer and lacked some of the computer’s more annoying characteristics, in particular the computer’s facilitation of ‘cutting and pasting’, which is undoubtedly one of the four horsemen of the modern apocalypse and which has cost many trees their lives and many lawyers and judges their eyesight.

³ “William Shakespeare” was a sixteenth century English poet and playwright of some skill. …

⁴ The “internet”, also known as the “world-wide web” is a bi-polar electronic Leviathan that has erupted on the world scene in the past two decades. … For the purposes of this case, the relevance of the internet is its un-policed “garbage in/garbage out” potential and its free-market-of-ideas potential to lure in otherwise pleasant and unsuspecting folk with all manner of absurdity and silliness.

⁵ Lest anyone misunderstand me, this is by no means intended to compare Mr. Duncan to a monkey. As I have noted, Mr. Duncan seemed a decent fellow who expressed himself well (other than when rambling a bit too long about jurisdiction, as noted herein) and whose principal shortcomings appeared to be too much free time with internet access and too little discernment in whose example he followed. The reference to monkeys with typewriters is intended solely to point out that technological “advances” are sometimes used to such ends that one wonders if perhaps the Luddites didn’t have a point.

• “Mr. Duncan provided me with an ‘affidavit of truth’, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like ‘jurisdiction’ and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money.” (at para 9)

Is there a problem with this sort of writing? Should using “literary flourishes” and “dry wit” to eviscerate the legally unmeritorious arguments of a litigant be part of the judicial craft? I have considerable sympathy for judges dealing with litigants who do not recognize their authority. Such litigants require time, patience and the careful and judicious employment of the court’s powers; it is not surprising that such litigants do not bring out the best in the judiciary. Liveliness and elegance in judicial writing also has much to recommend it.

The problem arises when judges use their judgments to mock the parties’ arguments. Mockery and condescension in judicial decision-making violates the parties’ dignity and, as a consequence, undermines the ability of our system of law to act as a form of social settlement. Indeed, that sort of writing reinforces the perception of OPCA litigants like Mr. Duncan that the legal system is nothing more than raw power dressed up in fancy clothes.

In his book Legal Ethics and Human Dignity (Cambridge: Cambridge University Press, 2007), Professor David Luban argues that the purpose of our criminal justice system is to protect the dignity of an accused, to prevent the humiliation of individuals charged with a crime. Whatever crime she is alleged to have committed, an accused must not be “silenced and ignored” with her “story and viewpoint [treated] as insignificant” (p. 72). Conviction should result only from a process which grants her the right to challenge the truth of the story the state tells about her, and to tell her own story in her defence.

That process of fair adjudication permits the legal system to claim the authority that OPCA litigants deny: the fact that a rule is law gives one a reason to obey it. The law provides us with a means of peaceful co-existence, a way to live together and to resolve our disagreements without violence. Each person in a society may have a different view of the right way to live, but the fact that laws are enacted through a reasonably democratic process, and applied through a reasonably fair system of adjudication, gives that person a reason to subject his own conception of the good to that which the law contains.

Where the legal system does not treat parties with dignity – as having a story to be heard – it cannot make the same claim to authority. The result it imposes in that case does not follow from the application of legal rules to the parties’ account of the facts or law (which could include the conclusion that the account is frivolous, untrue or unmerited). Rather, it follows from the exertion of force and authority by the state. That force might give someone a reason to obey, but it does not do so because it has made a legitimate claim to obedience.

Justice O’Donnell’s judgment in Duncan did not respect Duncan’s dignity. Justice O’Donnell could have advised Duncan that his argument was not meritorious, even that it was frivolous. But it was not acceptable to liken him to a monkey and then to pretend that he wasnot doing so by adding a footnote saying that he wasn’t. That the same passage adds a footnote explaining who Shakespeare is simply reinforces its clear message of humiliation: Mr. Duncan is stupid (he needs to be told who Shakespeare is!) and his arguments unworthy of serious attention. That message is reinforced by the judgment’s repeated reference to the silliness and foolishness of Duncan’s position and its overarching tone of condescension.

Does this judgment give any reason for Duncan, or someone in his position, to view the law’s rules and cases as worthy of his attention, as worthy of respect regardless of his own view of the right way to live? In my view it does not; indeed, it cannot given the contempt with which his commitments are treated.

One of the problems of the legal system, and one of the reasons why it can alienate its participants, is the extent to which the legal system cares only about the legally salient features of a person’s life. The law does not, for example, really care whether a transmission line on your property makes you unhappy; it only cares whether you have a legal basis for keeping it off. Yet for the person participating in a transmission hearing that unhappiness may be the only thing that really matters. That is a frustration that the legal system may never be able to fix while discharging its function. At the same time, however, those who run that system – judges, regulators, lawyers – need to recognize that when they frame people or their stories only in terms of what is legally salient they have the ability to miss much of what is, in a personal or moral sense, truly important.

Further – and this is the real point to be made here – when you have only considered the legally salient features of a person you know very little about him or her. Judge O’Donnell – and us – know nothing about Duncan. We don’t know if he is a good friend, a kind son, a considerate lover, a dedicated employee or a great person to have drinks with at the bar. We know only this: he made an unsignalled turn; he resisted an unjustified arrest; he defended himself in court through unmeritorious OPCA. A judge faced with that limited information ought to be properly restrained in what he says. Certainly Duncan deserved to be told that his arguments were wrong, just as he deserved his acquittal. But he did not merit being treated as someone of whom the judge had personal knowledge, and who could be described accordingly – “a decent fellow who expressed himself well (other than when rambling a bit too long about jurisdiction, as noted herein) and whose principal shortcomings appeared to be too much free time with internet access and too little discernment in whose example he followed”. That sort of description cannot follow from the law’s necessarily limited focus.

I used to teach contracts, including many Lord Denning judgments. While the students enjoyed them, and Lord Denning’s legal analysis always merited careful study, I think his example has been unfortunate. Tales of cricket and Yew Tree Farm may be evocative, but humility and wisdom are better aspirations for judges than drawing pictures in the sky.