If you read last week’s column you probably noted the current general topic is judicial education. Specifically, the focus of last week’s session was the definition of what is a judge and how did the concept of judging arise? We went back about 130,000 years to the hypothetical, and questionable, theory that Homo sapiens may have existed in North America before it had a name. The reason we are delving into these arcane mysteries is because the National Judicial College in Reno, Nevada has tasked some of its faculty, including me, with teaching an annual on-line course to judges from across North America. By design the course concentrates on general and basic aspects of what judges do and how and why they do it. So let us return to last week’s pedagogical construct of a truly elemental judicial system, that is, caveman justice.
You may recall we visited three hypothetical aboriginal families inhabiting a tiny cluster of huts. A dispute between two of the families had arisen over possession and use of certain flowers. Those two families agreed that instead of fighting with clubs they would agree to submit the matter to a member of the third family for a decision; voila, the first judge and the first court. But why would the dueling litigants accept the judge’s decision? Why not just ignore the judge’s imposed resolution and go back to trial by combat. How could the ancient society have confidence the judge was right, or if not completely right, at least fair? Judicial ethics were born. And that was the subject matter of this week’s NJC class.
If we assume the judge wants his or her family to enjoy the benefits of a peaceful community and we assume cooperation on such things as mastodon hunts by everyone is a benefit to all while bashing skulls is a benefit to none, we can find a basis for accepting a decision by an impartial judge. The rub, of course, is how to ensure the contentious parties believe the judge is impartial. That is why a large part of America’s judicial system places restraints and requirements on the behavior of judges. Judges, just as our caveman judge, have no armies nor do they have the power to raise revenue. All judges have to enforce their decisions is public confidence in the judge, or, at least, the overall judicial system.
So with our nascent judicial system from 130,000 years ago our judge could not play favorites and the two contesting parties would have to have confidence he/she was, in fact, impartial. People can accept a less that ideal resolution of their legal problem if they are convinced it was arrived at without prejudice. Therefore, our caveman judge must not talk to one family about the dispute outside the presence of the other family. And the judge must not accept favors from either family. Also, the judge must not voice any out of “court” opinions about the merits of the case.
Well, Gentle Reader, you might surmise there are a few more legal system details for mankind to work out other than our caveman justice. However, it all comes down to our judges must not only be fair, we must believe they are fair.