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Cover Story: Reaching for a Clearer Vision of Justice

by Edmund B. Spaeth Jr.

Spring 1999, Vol. 62, No. 1

Matthew (at 7, 1-5) reports Jesus as saying:
Judge not, that you be not judged. For with the judgment you pronounce you will be judged, and the measure you give will be the measure you get. Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye? Or how can you say to your brother, "Let me take the speck out of your eye," when there is a log in your eye? You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your brother’s eye.

This passage raises many questions, some of which I shall try to address here. (You may ask why I didn’t address them before rather than after judging hundreds of persons, and no doubt I should have. I can only plead that the refraction of years changes one’s perceptions.)

No Judges at All?
The command, "Judge not," seems unequivocal. To be sure, it is followed by the admonition that if you do judge, you will be judged, but I don’t think this justifies reading, "Judge not," as meaning, "Judge not, unless you’re willing to run the risk of punishment." The more obvious meaning is: "If you judge, you will be punished. Therefore, judge not." Just as the criminal law’s provisions that if you engage in certain conduct you will be punished reflect the legislature’s view that that conduct is wrong and therefore shouldn’t be done, so the command, "Judge not," reflects the view that for one person to judge another is wrong and shouldn’t be done. Nor do I think that the last sentence of the command, about seeing clearly if we take the log out of our own eyes, is permission that if we do that, we may judge. The point of the sentence, uttered with such scorn, seems to me to be that we won’t take the log out of our eyes because we don’t see it: we are, and always will be, hypocrites.

This is a hard command. I should agree that we have too many judges--that we are too quick to ask a judge to define obligations we should define ourselves, or, at least, should define without resort to the sharp weapons of litigation. But no judges at all? If everyone were committed to resolve differences peacefully and with respect for one’s opponents, judges might become unnecessary. But it is difficult to imagine such a state of affairs becoming reality.

In saying this, I acknowledge that some will respond that reality is irrelevant. If one believes in eternal life and divine judgment, this response is compelling, for on that view one should live in this world according to precepts that transcend this world. But if one believes, as I do, that we have only one life, and that during that one life we should do the best we can to make the world, as it is, a better place, one is likely to conclude that judges are necessary. If we cannot resort to the law--to judges--for protection, we will have only our own strength. The strong will take what they want, and the mob will kill those it hates.

But Can Judges Be Fair?
I don’t suppose that the foregoing suggestion that we can’t do without judges is an acceptable answer to the command, "Judge not." For it won’t do to say we need something, when what we say we need won’t work. And, if I understand it correctly, the premise of the command, "Judge not," is that judging won’t work. It can’t work because we can’t be fair. We have, each of us, a log in our eyes that prevents us from seeing into another person’s heart, from understanding the reasons for another person’s actions, and, therefore, from formulating a just judgment of those actions.

I am by no means sure that I can adequately respond to this assertion. But I am sure that response is necessary. We often boast that we live under "the rule of law." But if those who pronounce the law cannot, because of the log in their eyes, pronounce it fairly, our rule of law is nothing to boast about.

Permit me, then, to examine the conditions of the rule of law. The first is that the law be uniformly applied; the second, that it rest on an acceptable moral foundation. Are these provisions satisfied? Can they be?

Is Uniform Judgment Possible?
In a few cases, perhaps, any one judge will decide the same as will any other. In two homicide-by-motor-vehicle cases, for example, where each defendant pleads guilty and the statute provides for a mandatory sentence, judgment will almost surely be uniform. But in most sorts of cases, different judges will decide differently--sometimes very differently. The reason sentencing guidelines have been enacted is because judges differ so widely in their appraisal of what is a fair sentence. In child custody cases, one judge will award custody to the mother where another will not. One judge may not be disturbed, for example, by the facts that the mother doesn’t regularly attend church and is living with a man to whom she isn’t married; another judge may consider that such conduct proves inability to raise the child properly. In criminal cases, one judge will have difficulty disbelieving a police officer; another will be more skeptical.

Nor can the differences among judges be cabined and cribbed to achieve uniformity of judgment. Even put in the strait jacket of sentencing guidelines, some judges will wriggle out. Elaborate rules of statutory construction offer some assurance of uniformity, but not much. What is clear to one judge, another will find ambiguous; what one finds implicit, another will find excluded. Consider, for example, current differences on whether various federal statutes preempt state law. Especially striking are the differences among judges in interpreting Constitutional provisions. Does the Constitution recognize a right of privacy, and if it does, by what "emanations" from which amendments? To refer to older differences of opinion: May Congress limit a farmer’s production, the hours a woman may work, an employer’s ability to fire someone for joining a union, or not?

And consider the common law, where judges work with rules they have made and have the power to change. Whether to adopt a rule in the first place, as well as whether to change it, are decisions on which judges will differ. Consider the vagaries in the rules on hearsay evidence. Should privity be required, or not? Should one who witnesses an accident be entitled to recover damages for emotional distress, or not?

Does the Law Rest on an Acceptable Moral Foundation?
It is surely true that very often the law does rest on an acceptable moral foundation. Would anyone question the moral foundation of a law making rape a crime? But what about a law making it a crime for a woman who has been raped to abort the child conceived as a result of the rape? Some, I suspect many, would reject such a law as resting on no acceptable foundation.

Even if there is general agreement that a law does rest on a morally acceptable foundation, the challenge of the command, "Judge not," remains. It was once generally accepted that blacks were not entitled to the same protection under the Constitution as whites were; that women were not entitled to vote, or to practice law, or, if they were married, to own property in their own name; that black children were not entitled to go to public schools with white children. And many other decisions, based on principles once generally accepted but now seen as grievously wrong, might be cited. What is our response when such decisions are offered as proof that the judges who handed them down did not see clearly because of the log in their eyes?

Not long ago, a judge at the pinnacle of our legal system, addressing a symposium convened by the American Bar Association, said:

The law is not the adversary system. The law is Bracton and Blackstone and Wigmore and Scott on Trusts. The law is not the adversary system but the law is the first Harlan dissenting in Plessy versus Ferguson. It’s Holmes dissenting in the Abrams case. It’s Brandeis concurring in Whitney versus California. It’s the second Harlan writing for the court in Cohen versus California. That’s what the law is.

I admit to some difficulty in accepting this defense of the law.

It is true that "[t]he law is not the adversary system," in the sense that the law encompasses much more than the adversary system--as, for example, the preparation of a deed of trust and any number of other transactions that do not end in law suits. Nevertheless, in considering whether we live under a rule of "law," uniformly declared by judges and resting on an acceptable moral foundation, the adversary system may not be brushed aside so easily. For the adversary system is an integral part of our system of law and presents a most powerful challenge to the claim that we live under a rule of law. If the lawyers are of equal ability and the parties have equal resources, the adversary system is probably as good a system as any to uncover what really happened, and why it did. But lawyers aren’t of equal ability, nor do parties have equal resources. Under the adversary system, the poor don’t enjoy the same quality of justice as do the rich. And this is true whether or not the law in question rests on an acceptable moral foundation. A poor man charged with rape does not receive the same quality of justice as does a rich man.

But beyond this, for me there lies a greater difficulty with the passage from the address that I have quoted. In fact, "the law" is not "the first Harlan dissenting in Plessy versus Ferguson." Today, it may be said, Justice Harlan’s dissent is "the law." But for many years, for many thousands of black children, "the law" was as pronounced by the majority of the Justices in Plessy. For those children, the rule of law was the rule of oppression.

Do Judges Get It Right After Awhile, and Most of the Time?
I suspect that many readers will feel that my argument so far has been unfairly critical of our legal system. "What is wrong," they may say, "with the command, ‘Judge not,’ is that it is a command of perfection, just as your criticism measures our legal system by a standard of perfection. Of course judges will sometimes make mistakes. No one is perfect. But that is not a sufficient reason to forbid them to judge at all. As you yourself admit, we need judges, if we are to live in some security. While the judges’ mistakes are regrettable, eventually they are corrected. Meanwhile we should accept them as an inescapable aspect of a legal system that is, on the whole, a blessing." I acknowledge the force of this rejoinder, which may well be correct, and yet, I’m not persuaded by it.

Does the Law Improve, and If It Does, Does It Improve Fast Enough?
In citing Justice Harlan’s dissent in Plessy as "the law," the speaker whom I’ve quoted was arguing, I expect, that given time, the law will work itself pure. The evidence in support of this prediction, however, is inconclusive.

The basic notion is that the law is a self-correcting system of reasoning. Judges, it is said, are not free to reason as they wish, to indulge their personal preferences. Rather, they are subject to many constraints, sometimes called "neutral principles." A judge’s opinion must be seen not as arbitrary but as growing out of settled principle. The effort to write such an opinion curbs the judge. For example, a precedent may not be ignored; if the judge thinks it wrong, an explanation must be given that must itself represent acceptable legal reasoning. Similarly, the judge should be careful to stick to the facts of the case before the court, to decide only the issues necessary to decide and so on--the constraint being that if the judge violates these and comparable principles, another judge will, sooner or later, note and correct the violation.

Such general "neutral principles," however, do not in my view decide specific cases. The judges who decided Dred Scott and Plessy no doubt believed they were complying with neutral principles, as did the judges who ordered fugitive slaves returned, or who struck down the New Deal legislation, or who fought so hard to overrule Roe v. Wade. Up to a point, a judge should reason by applying neutral principles. But, in any case of difficulty, the judge will reach a fork, and which path is chosen will not be determined by neutral principles but by convictions, perhaps unacknowledged, personal to the judge.

Nor am I convinced that the process of legal reasoning will surely lead to better decisions. Have Miranda and Mapp been refined, or eviscerated? Is the increased deference to those who run the prisons an improvement? Was the decision that education is not a fundamental right consistent with earlier equal protection jurisprudence, or a retreat? Or, to refer to issues less grand, have changes in the law of torts resulted in a better balance between providing just compensation and deterring wrongful conduct, while not punishing too severely?

In any event, if one assumes that legal reasoning, not by itself but in conjunction with changes in a democratic society, has led to improvement in the law--and I believe that there have been many improvements--the question remains whether the improvement comes fast enough. I don’t know by what standard to evaluate the rate of improvement; I suspect it will vary according to one’s satisfaction with one’s lot in life. But even by a quite relaxed standard, I am hard put to justify the Supreme Court’s delay in overruling Plessy; or the court’s failure to overrule its decision upholding Georgia’s law making consensual sodomy criminal, instead leaving invalidation to the Georgia Supreme Court; and we have waited a long time for judicial recognition of a poor child’s right to a decent public education.

"Now just a minute!" you may protest. "Judges can’t do everything. Prejudice can’t be eliminated, nor economic fairness achieved, by judicial decree. Furthermore, judges can’t get too far ahead of society. If they do, they will be seen as attempting to impose their own prejudices and their decisions will lose legitimacy." Granted. But where is the line between leadership and timidity? Between appealing to a society’s best instincts and yielding to its worst? Questions like these aren’t answered by reference to the rule of law or appeals to neutral principles.

Do Judges Get It Right, If Not All of the Time at Least Enough of the Time?
An attractive argument in jurisprudence is that we should determine what is good by determining what is good for the greatest number. The argument is attractive because it assumes equality: in counting who are the greatest number, the rich are accorded no more weight than the poor. Even so, within this argument sleeps a monster.

When Agamemnon sacrificed his daughter Iphigenia, to appease the gods so that they would let the winds blow the fleet to Troy, no doubt he thought he was doing what was good for the greatest number. What, exactly, was wrong with his reasoning? In religious terms, he failed to recognize that "there is something of God" in everyone; in terms of Constitutional law, he failed to acknowledge that each of us has "unalienable" or "inherent" rights that he was not free to extinguish.

Today, no one (almost no one?) would support sacrificing an innocent individual to benefit the majority. And yet, our judicial system seems to me to come sometimes at least very close to doing just that. Thus, many rules have been developed that deny judicial relief. These rules are needed, it is said, to prevent the courts from being so flooded with pleas for relief that they cannot go about their business in an orderly and expeditious way: so that many litigants may be heard, some litigants are turned away.

At what point does this turning away amount to sacrificing the rejected litigants for the good of the other litigants? What about an order denying a petition by an inmate on death row for a stay of execution or a writ of habeas corpus on the ground that the inmate has had sufficient opportunity to prove his innocence? Or a decision that a finding of ineffective assistance of counsel must be supported by proof of innocence? Or an order denying a new trial on the ground that the argument advanced in support of a new trial has been waived?

I don’t know how to measure whether the courts are too protective of themselves. But I do know that innocent persons have gone to their death, or to prison, or been denied just compensation, because the courts have turned them away. And I cannot help but wonder whether they were turned away because of the log in the judges’ eyes.

What, Then, Are We To Do?
If we must judge others, for our security, but cannot be just because we are blind to our own faults, what are we to do? I am aware that in arriving at this question, I may have seemed ungrateful or severe, and I didn’t mean to. I count as a principal blessing, in a much-blessed life, the chance I have had to be a lawyer, then a trial and appellate judge, and then a lawyer again. I agree, on the basis of this experience, that we enjoy a judicial system in which we may take considerable pride. I know of none that is better. And certainly our judges cannot by themselves carry the burden of achieving a more just system. The members of the other branches of government have at least an equal responsibility. This said, however, I submit that we still must answer to the command, "Judge not."

If Brandeis was right, as I think he was, that sunlight is the best disinfectant, one answer is: Let lots of sunlight into our courts and then, correct the flaws revealed.

When I was on the bench, I came to know many judges and I saw how they sought to discharge their demanding responsibilities. Now, as a lawyer, I look back and remember not all but most of those judges with admiration and affection. Surely we can criticize the administration of justice without being either disrespectful or unfair. As their officers, we do not serve our judges well by heaping them with praise, or preening ourselves on our zealous advocacy--as though there were no serious flaws in the "rule of law." Are we really satisfied that we select our judges in the most thoughtful way; that they are uncompromised by extraneous pressures, political or financial; that they conduct their business openly and with proper expedition; that we as lawyers advance rather than inhibit fair dealing and fair settlement of differences? Both anecdote and poll reveal erosion of public confidence in our courts and the legal profession. Is the public wrong?

I suppose that by asking these questions, I have indicated my own conviction that we must do more than we are doing to improve the administration of justice. But whatever we do, the challenge of the command, "Judge not," will remain.

I cannot accept the command, for, as I have said, I believe we must have judges if we are to have a chance to lead orderly and productive lives. But neither can I reject the command, for it has too much power--demonstrated by the law’s long history of blindness and cruelty. The best I have been able to do in response is to remind myself of the human condition: we shall always seek, but never find all we seek; and yet, we shall never give up hoping to find it. So, as we seek justice, we hope that those who come after us will do better than we have, will get a bit closer to a goal we shall never reach.