You don’t usually expect to read controversial political opinions in dry old law textbooks. Few textbooks are drier than Bennion on Statutory Interpretation:
A saving resembles a proviso, except that it has no particular form. Futhermore it relates to an existing legal rule or right, whereas a proviso is usually concerned with limiting the new provision made by the section to which it is attached.
You can therefore imagine my surprise as I was skimming through the introduction to find the following passage:
The requirement of diversity [in appointing judges] raises different questions. Under the previous system our judges were drawn almost entirely from a population consisting of people with a Judeo-Christian background; it was such people who over centuries created a common law, including the criteria (reproduced in this book) which the common law lays down for statutory interpretation. In particular that brings in the important concept of legal policy, derived from public policy.
Historically the content of legal policy in Britain has reflected the peculiar culture of the nation. To now insist on ‘diversity’ among our judges indicates that this is intended to change and that our judiciary will no longer have a common mindset. But a judge’s service must always be to the entire community, and should reflect the prevailing moral outlook. That principle needs to be stressed in a manner it has not been in official pronouncements on ‘doing law differently’. It would be regrettable if the way a case was decided came to depend on the accidental composition of the bench who happened to try it. What view would a judge who was for example a faithful Muslim take on the present content of British legal policy? [p 4-5]
Bennion, bless his socks, is just utterly, embarrassingly wrong here. Using the same assertion ‘Historically the content of legal policy in Britain has reflected the peculiar culture of the nation’ we can derive an entirely different conclusion: why has the Court stopped reflecting the peculiar culture by remaining dominated by heterosexual white men? Let’s start with SCOTUS. In the United States, there is fewer than one male for every female. We would therefore expect that the Court, ‘reflecting the peculiar culture of the nation’, would be the same… but only one third of the Court is female. (As an aside, when will there be enough women on the Supreme Court?)
Only about three-quarters of the population of the United States is Christian. A further 1.2% is Jewish. Two-thirds of the Court is Christian, the remaining third is Jewish.
Perhaps the best match up is representation of African-Americans and Hispanics: 11% of the Court is African-American, while 12% of the general population is; another 11% of the Court is Hispanic, which isn’t too far off the 15% of the general population. Whites are slightly over-represented: while only 72% of the general population, they make up 77% of the Court.
It’s simply wrong to say that the content of legal policy has reflected the peculiar culture of the nation unless you are intending to mean that the peculiar culture of the nation was sexist and racist. But who wants the Court to continue to reflect that peculiar aspect of our culture?
We can attack Bennion’s assertions from another angle. He claims that it ‘would be regrettable if the way a case was decided came to depend on the accidental composition of the bench who happened to try it’. It’s clear that Bennion means something other than he says, because this is literally preposterous.
We are entirely familiar with ‘conservative’ and ‘liberal’ courts, with courts who take this or that approach to the interpretation of law, and with courts who are more or less willing to develop the common law. In Australia, Administrative Law is a wilderness of single instances where judgements appear to be the outcome of what the individual justices had for breakfast that morning. There’s also evidence to suggest that judges will retire based on who is likely to win the next election.
One of the enduring puzzles of legal theory is how to justify the historical accident of court composition. Despite what many media outlets would have you believe, (most) High Court cases aren’t like sports matches. We (usually) have two (or more) competing interpretations of the state of the law. There’s an unresolved question of law due to some ambiguity in the law, or to some novelty in the specific case to which the law applies. The composition of the court will influence, to no small extent, the resolution of that question.
Bennion cannot mean what he says. He must know — and, indeed, from his extensive legal career, does know — that cases are decided based on the accidental composition of the court.
His objection is more sinister. Compare the court today with one that includes one Muslim. Unless the decision made by the two courts is the same, then the Muslim component is a historical accident that has ‘biased’ the court. But if the decision is the same, what’s the value in the diversity?
In The Hidden Gender of Law, Regina Graycar and Jenny Morgan discuss claims to objectivity:
One of the ways within legal discourse in which challenges to the objectivity of legal decision-makers arise is in the challenges for ‘bias’. The doctrine of ‘natural justice’ or procedural fairness provides that a party has the right to be heard by a person who is not biased or, more accurately, the bias rule is infringed if there is a reasonable perception of bias. There have been a series of challenges to women and people of colour, alleging that they are biased. For example, a Melbourne solicitor sought judicial review of a planning tribunal decision on ‘the novel ground that the tribunal was five months pregnant.’ He alleged that the tribunal member ‘suffered from the well known medical condition (‘placidity’) which detracts significantly from the intellectual competence of all mothers to be’. He also lodged an affidavit from a well-regarded medical expert that a pregnant woman ‘no longer has the clarity of mind and precision of thought she had before pregnancy.’
They also note a Queensland court empanelled only male jurors in a case when the defendant claimed that his religious beliefs found it an ‘abomination’ for a man to be judged by women, and some cases where ethnic minorities were perceived to be biased because of their background. ‘White’ and ‘male’ is objective; anything else brings in questions of partiality.
Bennion is fine with ‘normal’ variation amongst educated whites, but diversity more broadly (or representatively) is an existential threat to the legal tradition. There is no principled reason why we should agree with Bennion, and his position is overtly racist.