THE Hon Russell Fox QC, a former Justice of the Federal Court, is tall, bald and cheery, rather like the dread Kevan Gosper, without the snapping turtle effect.
When Gerry Brennan introduced me to him at the launch of his Justice in the 21st Century (Cavendish 2000), Judge Fox made ticking signs high in the air and said: “I read your book [The Cartel: Lawyers and Their Nine Magic Tricks]. You’ll be able to tick off where I agree with you.”
Thanks, judge, but it’s the other way round.
Judge Fox has a disturbing answer to a fundamental question appropriate to a new column on the law: What is justice? UCLA law professor Michael Asimow said (Nova Law Review, Winter 2000):
“[The] general public and lawyers differ about whether justice means truth or justice means process.”
That means a robust 0.2 percent of the English-speaking world believe justice is adversarial process, but in Overcoming Law (Harvard University Press, 1995), Chicago appellate judge Richard Posner (*pictured) describes “adversarial procedure” as “contests of liars”.
The public, and perhaps some lawyers, might see that as a tiny flaw in a system of justice, but Lord Chancellor Kilmuir (1900-67), born David Maxwell Fyfe, had a gallant stab at making the case for process.
Viscount Kilmuir wrote (The Migration of the Common Law, Law Quarterly Report, 1960):
Justice before truth
“Now the first and most striking feature of the common law is that it puts justice before truth. The issue in a criminal prosecution is not, basically, ‘guilty or not guilty?’ but ‘can the prosecution prove its case according to the rules?’ These rules are designed to ensure ‘fair play’ at the expense of truth. The attitude of the common law to a civil action is essentially the same: the question is ‘has the plaintiff established his claim by lawful evidence?’ not ‘has he really got a good claim?’ Again, justice comes before truth.”
(Fyfe’s other distinctions included brilliantly taking over the cross-examination of Hermann Goering after Goering made a fool of the chief prosecutor, Justice Robert Jackson, of the US Supreme Court; failing, as Home Secretary in 1953, to save Derek Bentley from judicial murder at the hands of Lord Chief Justice Rayner Goddard, and whining that a cook would get more notice when Harold Macmillan dismissed him in 1962. Macmillan replied that it was harder to get a good cook than a Lord Chancellor.)
Russell Fox demolished Kilmuir thus:
“This statement in fact begs the present question by saying that justice is what the parties [i.e. their barristers] present in evidence, true or not. On the other hand, there must be a standard, and the public estimate must be correct, that justice marches with the truth. Only in this way does the concept present a moral face, as distinct from one where the winner is the person with the greatest resources and best advocacy.”
In short, Justice Fox says justice is truth, and the search for truth gives a legal system its necessary moral centre.
Common lawyers as eminent as Murray Gleeson and Jim Spigelman have heroically asserted that the adversary system does seek the truth, but, as even Viscount Kilmuir knew, it does not.
The implications are profound.
* * *
Phillip Knightley, twice judged British Journalist of the Year, said of the writer’s seventh and latest book on corruption: “Serial Liars is a masterpiece. Only Whitton could have written it.” The ebook is US$7.50 from http://www.lulu.com/serialliars-buy
First published in Justinian, June 29, 2004.
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