03 September 2020


French CJ in a 2010 Victorian Bar Association speech commented

in the unpromising setting of a moneylending case, Chief Justice Barwick let his literary hair down and spoke of arrangements which sprang out of friendship and which 'at least as to friendship had a Shakespearian denouement'. 

All the Chief Justices, however, could take lessons in judicial literary adventurism from Chief Justice John Roberts of the United States Supreme Court, who recently visited this city. In a judgment he wrote in 2008 concerning whether a police officer lacked probable cause to arrest a cocaine dealer, he adopted the style of Raymond Chandler:

North Philly, May 4 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighbourhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighbourhood. 

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

It is not necessary for a lawyer to be a writer, composer or poet, or a judge with literary pretensions to be a singer of songs and dreamer of plays. Karl Llewellyn, in his famous Bramble Bush Lectures of the late 1920s and early 1930s, eloquently and elegantly took issue with Sandburg's relegation of the legal profession from the ranks of productive humanity. He pointed to the way in which creative advocacy informs good judging and said: 

The job of choosing wisely between the inventions of counsel is a difficult one. The job of consistent wise choice is tremendous. Yet it is not of itself the major work. That has been done, consistently, continuously, by the bar ... And when I say invention, I mean invention. To produce out of raw facts a theory of a case is prophecy. To produce it persuasively, and to get it over, is prophecy fulfilled. Singers of songs and dreamers of plays – though they be lawyers – build a house no wind blows over.

The songs and plays of counsel are shaped by the exigencies of the particular cases in which they appear. They resonate in the public sphere. Every legal proceeding, however small, however apparently routine, is a public acting out of the proposition that ours is a society governed by the rule of law and aspiring to justice according to law. Every contending argument in every case is a statement about where the justice of the case, according to law, is to be found. Every judicial decision made independently, impartially and with care declares the answer, as best the judge can give it, to the question: what does the doing of justice according to law require of me in this case?