The purpose of the law

In law, every case is unique and the competent jurist is guided by principle, not precedent.

Judgments frequently contradict one another and if a precedent were a binding rule that could be wrapped around any cause of action, there would be no need for Judges. We could merely give lawyers the authority to draft judgments and instruct the Judge to sign it, which is what in fact happens when the process is corrupted or when a Judge is inappropriately influenced by the theatrics of a lawyer or an "expert" who provide tailored conclusions to match suspicions.

Moreover, it is possible that Judges who make a comments like "my hands are tied" and "I am circumscribed by law" are merely caving in to the prejudice of a previous judgment and that is also not acceptable.

Terms like "equality under the law", "justice for all", and "equal protection under the law" are not just words. They reflect enduring, inviolable principles and "precedent" is an abusive tool if it is used in an irresponsible manner.

Stare decisis is the policy of courts to abide by or adhere to principles established by decisions in earlier cases but there is nothing in the law which mandates adherence to any miscarriage of justice, past or present.

It is important to emphasize "principles" because prior decisions which do not comport with notions of good reason prejudice the opportunity to be fair and reasonable.

Consequently, When we say "Let the decision stand", we should also be thinking about the principles which the decision is supposed to advance because precedents are not immutable. In fact, they should be subjected to serious scrutiny: "Is the precedent administrable?" "Have the facts that the courts assumed in its older precedent changed?" "Have new developments brought the foundation of an older precedent into question?"

Precedent is a tool of guidance, not a mandate to ignore developments that beg revision or alteration.

Moreover, sophistry can make those judges who like to appear to be infallible despite their erroneous judgements, hide behind what they characterize to be their duty to apply the rule of law.

It is almost as if they are saying "trust me" when they make stupid decisions and hide behind rhetoric like, "I am circunscribed by the rule of law" and "my hands are tied". Bullshit. We are all circumscribed by the rule of law and the hands of justice should never be tied.

Judges should strive to ensure that their conduct, both in and out of court, maintains and enhances confidence in their impartiality and that of the judiciary. The appearance of impartiality is to be assessed from the perspective of a reasonable, fair minded and informed person.

Unfortunately, that is not always the case and it is consequently necessary and essential to develop sophisticated crap detectors because judges routinely hide their connections to litigants and their lawyers. These links can be social – they may have been law school classmates or share common friends – political, financial or ideological. In some instances the two may have mutual investment interests. They might be in-laws. Occasionally they are literally in bed together. While it’s unavoidable that such relationships will occur, when they do create a perception of bias, a judge is duty-bound to at the very least disclose that information, and if it is creates an actual bias, allow a different judge to take over.

All too often, however, the conflicted jurist says nothing and proceeds to rule in favor of the connected party, while the loser goes off without realizing an undisclosed bias doomed her case.

Everybody should have the right to ensure the judge sitting on their case doesn’t have a conflict.

Judges are expected to be rigorous in excluding personal bias when making decisions; hence, there are few judges who would readily admit that they have biases which interfere with their impartiality. Indeed, judges are typically appalled if their impartiality is called into question. (Bernard L. Shientag, The Personality of the Judge, in HANDBOOK FOR JUDGES 67(1961).

Generally speaking, the personality of the judge has not changed.

There is nothing more dangerous than blind faith in their impartiality because that gives judges a false sense of confidence in their decisions and sooner or later, the character of the innocent men and woman who are victimized by their glaring and inexcusable errors will destroy their undeserved reputations.

Impartiality... is rather difficult to attain in any system .... The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. (Lord Justice Scrutton, The Work of the Commercial Courts, 1 CAMBRIDGE L.J. 1,8(1921). )

Donald C. Nugent's scholarly article on judicial bias brilliantly exposes the prejudicial consequences of pre-established inclinations and he concludes his brilliant analysis with;

“Hopefully, I have demonstrated, in this rudimentary behavioral science review, that it is a difficult, if not nearly an impossible, task for judges to separate themselves from all of the various limitations and influences on perception that produce bias in judicial decisions.” (Donald C. Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1 (1994))

You can always detect biased judges from their tendency to mischaracterize and to be judmental. The law demands judicious, not prejudicial conduct.

The bible says do not pass judgment and you will not be judged; do not condemn, and you shall not be condemned; pardon, and you will be pardoned.

The reason for that is because judgmentalism is an attitude or disposition that favours making negative comments about people even when clearly unjustified. That is why is is necessary for a judge to be judicious. The alternative invites prejudice, tunnel-vision, and the level of narrow-mindedness that is responsible for every miscarriages of justice.

The bottom line is this: While errors are woven into the fabric of being human, when they are predictable and systematic, there is no excuse for the failure to anticipate and to counteract them.

And that is what justice is all about.


Next: Sooner or later, reality will catch up with those who abuse the process.


 
Nixon was in Dallas on November 22nd 1963.


 
 
 
 
 
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