Tuesday, January 10, 2006

Judicial Power

What are the origins of judicial power?  In this post, I shall argue they are kingly; that they share common roots with those of the ancient warrior kings, and that even today, there are kingly, or dictatorial, elements to the way they are applied and enforced.

The earliest kings were judges.  It was one of the things they did.  They used their power as kings to resolve disputes between their subjects.  The story of Solomon, and the two women arguing over the parenthood of a child, is a classic example of an ancient king executing his role as judge.

As kingdoms grew, and kingly tasks and duties multiplied, European kings delegated some of their tasks and duties to other men.  One of these was the role of judge in disputes between subjects.  A crucial assumption in this delegation of duties was that because the delegates had been appointed by the king to carry out tasks traditionally carried out by the king, in each of their specialist areas they carried the power of the king.

Judges were given the power to take decisions, which carried the force of law.  They were given the power of life and death over the King’s subjects.  They were given the power to divide and to allocate property.  And as legislation became more complex, judges were even given the power to interpret the king’s law.

As European societies evolved during the second millennium there was an interesting lack of symmetry between the evolution of the powers of the monarch and those of the judiciary the monarch had appointed.  For while the power of the monarchy was diminished, as society sought to become more democratic, the power of the judiciary, far from diminishing, increased, in relation to that of the monarchy, to the point of absurdity in both the English and French Revolutions, when judges were putting kings and their families to death.

Over the last 300 years, such kings and queens as remain have had their powers reduced to little more than a vestigial ceremonial role.  Yet their appointees, the judges, have never had their powers curbed or controlled.

To whom else are we expected to bow as we enter or leave the room in which they preside?  
Who else in our society has the power to lock up a fellow citizen on a whim?  It has been observed (click here for source) that the judicial “power of contempt is, perhaps, nearest akin to despotic power of any power existing under our form of government”, and that while one might expect such power to be vested in the autocrats of a totalitarian state, it seems out of place in a democracy.

In almost any other profession there is a review process, which can be invoked at no cost to the plaintiff.  If a citizen is mistreated by the police, the medical profession, or even a legal practitioner, they can lodge a complaint without cost or obligation.  A judge on the other hand can issue edicts almost entirely without supervision or review.  Leaving aside how few people can actually understand what is written and have any idea whether or not it represents a sound legal interpretation of the facts, there are enormous barriers to prevent anyone questioning the judgement of a judge.

First there is diplomatic expediency.  Don’t appeal, urges your solicitor; or you’ll put them off side for the next round.  Then there are the regulations.  Every “t” has to be crossed and every “i” dotted to launch an appeal, and it all has to be done within a set timeframe, sometimes absurdly short.  Finally there is the cost.  You have to be wealthy indeed to launch an appeal against the decision of any court.

For most people this is all beyond their reach, and for most judge, most of the time, it means the freedom to do or say what they will.  There is no editor to proof read their judgements, no boss to sign off on their edicts.  There is no board of directors to whom they are accountable, no shareholder to vote them out of office.  Not even the press take much interest in what they do or say.  Most of it is very dull.  Who has time to read through reams of legal judgements, questioning their syntax, logic, or interpretation of the law?  Who indeed gives a damn, save those who are directly involved?  And you can’t believe, because they’re involved.

So while the Crown, who still technically appoints the judiciary in constitutional monarchies, is reduced to an icon, a figure on a coin or a postage stamp, and the object of ridicule in the press, judges continue to enjoy the unfettered power of their predecessors of a thousand years ago.              

Sunday, January 08, 2006


I must have been about 11 or 12 when I asked my mother how you could live in the country but still earn a lot of money.  Become a vet I was told; and that was it.  From that moment it was just assumed I was going to become a vet.  But there were a couple of problems.

First there was the incident with the front door.  My sister, Mary, and I were playing alone one day (why were we alone? – they’d be done for neglect nowadays, but nobody cared then) and a certain game involved Mary trying to get into the house, and me keeping her out.  So she was pushing on one side of the door and I was pushing on the other.  Unfortunately it was an old door, with many fragile panes of thin glass, and Mary was pushing on one of those.  It broke, and made a deep gash in Mary’s arm.

So there I was, aged about 12 or 13, responsible for Mary, aged about 8 or 9, and she was gushing with blood.  I held Mary’s arm under a cold tap to clean it and realised how big the wound was.  So I tied a martingale strap around her arm in a feeble attempt at a tourniquet, and ran to one of the cottages along the drive in search of help.  Meanwhile my parents returned home, and Mary was taken to hospital, where she was given 36 stitches to patch her up.  Luckily, apart from the scar, which is still visible today, no permanent damage was done.

The following day we were all at pony club camp.  And guess what the lunchtime lecture was about?  First aid: How to treat among other things serious wounds.  And surprise-surprise, I turn white and had to be removed from the lecture.  The explanation given was that I was afraid of the sight of blood (poor child), and was alas probably most unsuited to any sort of career in medicine, veterinary or otherwise.  

With hindsight, I suggest I was in shock from the previous day.  Today, under similar circumstances, Mary and I would be given counselling for weeks, even months after the event.  But in those days, if you couldn’t watch your sister near bleed to death and be cool about it the next day, you were labelled a sissy, and mocked for evermore.

Then there was the popularity of vet school, which at the time was relatively higher than medical school.  The leading vet schools required straight A grades at A level, or 2 A’s and a B, while you could get into medical school with 3 C’s or less.  Was I up to the task?  Probably not, was the feeling conveyed to me by the family.  Too squeamish, and too thick was their verdict.

But nothing else was ever suggested.  I was left to face a bleak outlook.  I’d try for vet school and fail, and either become a second rate doctor, or perhaps because I didn’t really like people, I’d go into medical research, and spend the rest of my life in a smelly old lab in a shabby white coat, and from time to time I might get my face blown off, because someone traps a Bunsen burner pipe in a drawer and then strikes a match (according to the safety films they showed in science at school).  It was a bleak prospect.

Then there was a series on telly about a merchant banker.  He seemed to lead a pretty good life.  No shabby white coat for him; no explosions in a lab.  He drove a sports car, and always seemed to have a pretty girlfriend.  His work life looked pretty exciting too.  He was involved in mergers, and acquisitions, contested takeovers, boardroom battles, scandals, and rooting out fraud in the dealing room.

And on the strength of this TV series, I quietly switched tracks.  I dropped chemistry from my O level list, and added German.  I added Economics to my A levels.  After leaving school I read Economics at Cambridge and headed boldly to the bank recruiting seminars, in the confident belief that sports cars, pretty girlfriends and boardroom battles lay just around the corner.

Sadly the seasoned bank recruiters did not share my enthusiasm.  They looked at the interests listed on my CV, they looked at my clothes, and they looked at me; and they did not like what they saw.  My interests and achievements at the time included equestrian sports, beagling and the Cambridge wine societies.  I had been captain of blind tasting, and we beat Oxford for the first time in eight years.  I thought this represented excellent preparation for luncheon on the top floor of a merchant bank, but the more serious recruiter didn’t think so.  I had also engaged the negative strategy of not buying a city suit, in case I didn’t get a job.  So I turned up in tweed and brown shoes, not realising that whatever merchant bankers may get up to at weekends, during the week they leave their country clothes at home.  Wearing brown shoes would be considered shocking, but a brown suit.  I could have created no worse an impression had I turned up in denim jeans.  And as for me, when they asked why I wanted to work for a bank, I was stumped.  I couldn’t tell them I’d watched a TV series as a teenager.  Nor could I admit I was fleeing from life in a white coat in explosive chemistry laboratories.  So I spewed a lot of bullshit about interesting careers and international travel, and they knew I was full of shit, and they politely suggested that I go back to the country, and ride horses.

If you’ve read my profile, you might now be wondering how I ended up at the Bank of New York.  The answer is by accident.  The recruiter there happened to be even more shambolic than I was, his recruitment strategy one degree worse than my job application strategy.  A Cambridge man, not much older than me, he didn’t even approach Oxford.  And he didn’t approach Cambridge until the recruiting season was over, and there was nobody left in the race, but little old me.

With hindsight of course, the hardened recruiters, from banks who had their act together, were right.  There was nothing in my CV, which indicated to them that I’d enjoy a career in banking, and as turned out there was nothing that enjoyed about banking.  Thirty years later I am living in the country.  And on formal occasions, I dust off my tweed suit and polish my brown shoes, and give them an airing, in an environment where they belong.    

Saturday, January 07, 2006



In many ways I had an idyllic childhood.  My parents did not get divorced or separate.  My father did not abuse my mother; neither did he abuse we children.  My father retired when I was 8, so he was at home.  We lived in a big house, with 10 acres of paddocks and garden.  We had ponies and other animals.

But there was something missing.

My parents were not sociopaths.  On the contrary, they were on every church and gymkhana committee, they organised, hosted and attended local fundraisers, and they gave shelter to every lame duck they could find.  But they did not like society.  They refused invitations to parties and they never hosted them.  When my sister and I were very small, I can remember a few birthday parties with jelly and ice cream, but as soon as we approached the dreaded teens, parties became taboo.

And whereas children, who live in a street, may play in the street, with other children, we did not live in a street, and we did not have any immediate neighbours.  At the end of our drive were the gates to another drive, which led to an even bigger house, but the children there were younger, and they kept themselves pretty much to themselves as well.

I believe the security of my childhood, the stability of my parents marriage, the stability of the home, the security of having both parents around, gave me an inner strength.  But also believe the social isolation gave me a social timidity at work and for a long time in life, which was not advantageous.

Inital post

This is obviously my first post. I'll keep it short, because I want to see what it looks like. I also want to have a quick look around to see what other people are posting.  I like the idea of a blog. I kept a diary years ago, when I was much younger. It's wonderfully self indulgent.

I also relish the prospect of writing in the absence of academic referees or editors.  I look forward to spouting ideas, without even pretending to have conducted any research into the area under discussion.

I wonder what sort of nonsense other people are writing. I wonder if anyone reads it.