By Muhammed Adamu
“Someone must be trusted. Let it be the judges”. –Lord Denning Preamble
The Right Honourable Lord Denning devotes a substantial portion of his book What Next In The Law, to discuss how the English justice system faired in the hands of some of the great judicial reformers of British antiquity. He narrates how centuries of judicial interventions, by judges -concerned about ‘law’ as about the ‘object’ of law, namely ‘justice’-, has helped to deepen contemporary British system of jurisprudence; so much that Denning himself, a diligent product of that disciplined history, proudly said that the British justice system can always be counted upon to remain incorruptible even by the prevalent socio-political currents in the society.
What Next In The Law discusses Lord Henry Bracton, who started the English system of ‘judicial precedent’; Lord Edward Coke, the fiercest fighter against royal prerogative; Lord William Blackstone, who wrote the greatest law book on English law; and Lord William Murray, who founded ‘commercial law’ as it is today and who in fact was credited with having “extricated (English law) from pedantry, technicalities and narrow-mindedness”.
Lord Murray was that famous judge of Scottish extraction who on becoming the Earl of Mansfield, came to be known even by his peers as ‘The Great Lord Mansfield’.These four justices, together with a fifth Lord Brougham who, although not ever a judge, was himself one of the greatest judicial reformers of the British justice system, Denning said had improved the English law in their different ways, not by the promotion of mere procedural technicalities -that the common law especially, was reputed for but by consciously, constantly and consistently espousing and expounding the law to rid it of technicalities. These men Denning said “sought to make the law more just or more equitable”.
Lord Bracton: Lord Henry Bracton, an ecclesiastic –as most judges were in the 12th Century- who had lived over seven hundred years ago, was credited with being the first judge to ‘make the law into a science’. He was said to have started the English system of ‘judicial precedent’ or ‘stare decisis’, whereby before the courts events with similar facts were to be judged in a similar way and with a similar outcome.
Bracton, from his early days as a judge, kept a notebook in which he was said to have painstakingly noted up to 2,000 previous cases from the parchments of ‘old plea rolls’ in the 13th century. And it was by making reference to these decided cases, that Bracton started the English system of precedence.
Thus in the efforts to bring ‘certainty’ and ‘consistency’ to the law, Lord Bracton etched his name in judicial history. And with lexical undertones, Denning said, England was to be sung even by poets as ‘A land of settled government; A land where freedom slowly broadens down, from precedent to precedent’.
And although Bracton’s other judicial legacy was that controversial submission that “the King should not be under man, but under God and the law”, it was nonetheless sufficient that although he elevated rulers above mere mortals, yet by placing them under ‘God and the law’, Bracton’s repudiation of the ‘divine right of kings to govern wrong’ was unequivocal.
Lord Coke: Then there was Lord Edward Coke, who would say “There is no jewel in the world comparable to learning: no learning so excellent both for Prince and subject, as knowledge of laws; and no knowledge of any laws… as the common laws of England”. But it was the pithy , simple philosophy of Lord Coke, concerning judicial pronouncements that Denning recommends the most to judges, which is: “To speak effectually, plainly, and shortly” because as Coke would often say’: “Truth takes small delight with varnish of words and garnish of flowers.”
Coke was the one Lord Denning had described as “a strange mixture”, because when he was Attorney-General he was said to have been “cruel and unjust”; but that when he became the Lord Chief Justice he was most eminently “wise and just”. Denning quoted the words of Sir William Holdsworth who said about Coke, “What Shakespeare has been to literature, what Bacon has been to philosophy, what the translators of the authorised version of the Bible have been to religion, Coke has been to the public and private law of England.”
When Coke became Chief Justice of the King’s Bench, Denning said he “stood up against the pretensions of the King” who, once demanded to be consulted on a certain ‘Case’ being heard by the judges, before it proceeded any further. Coke was said to have ‘resolutely refused’, insisting that “Obedience to His Majesty’s command to stay proceedings would have been a delay of justice, contrary to the law, and contrary to oaths of the judges.”
Although he survived this affront to royal caprice, Coke was still to be dismissed for several other decisions of his considered objectionable to the King. Coke’s rare, self-harming courage in rebuffing royal prerogative had helped to entrench two fundamental requirements of justice, namely the independence of the institution that dispenses it, and the speedy, timeous manner in which it should be dispensed.
Yet Coke would go into retirement to institute his famed system of ‘Law Reports’ covering 40 years of court cases which were laced with ‘notes’ of his own considered as authoritative as the decisions themselves. Even his adversary on the Bench, Francis Bacon had said about Coke’s Law Reports: “To give every man his due, had it not been for Sir Edward Coke’s ‘Reports’… the law by this time had been almost like a ship without ballast.”
Coke would also publish his ‘Institutes’, a compendium of all there was to know about the ‘national laws of England’ and which in fact Justice Stephen said “had greater influence on the law of England than any work written between the days of Bracton and those of Blackstone.”
Blackstone: Then there was Lord William Blackstone, whom Denning said was the “greatest exponent of the common law that we have ever had”. Blackstone was once recommended for the Regius Professorship to teach Civil Law at the ‘All Souls’ College’, an offer which he rejected out rightly because the appointing authority, namely the Duke of Newcastle, had said that he would double on the job as the Duke’s undercover political agent. For a man who even as a non-judge, was averse to the ‘political sphere’ of life, Blackstone had no difficulty rebuffing the chance of a lifetime to be both professor and a favoured man of royal prerogative.
Blackstone remained at Oxford where he was eventually to be appointed the first Vinerian Professor and thereafter was to write what was to become his ‘immortal’ ‘Commentaries on the Laws of England’ –another compendium which Denning said: “was at once acclaimed as a classic by lawyers and by men of letters”. In fact, he added that it was “the greatest law-book that we have ever had.”
When the great Lord Mansfield was asked what books he would recommend for a son about to read law, he said “till of late I could never with any satisfaction to myself answer such a question; but since the publication of Mr. Blackstone’s ‘Commentaries’ I can never be at a loss. There your son will find analytical reasoning, diffused in a pleasing and perspicuous style. (and) There he may inhale imperceptibly the first principles on which our excellent laws are founded.” Even although he later became a judge of the Court of Common Pleas, it was in his unique and excellent exposition of the common law, that Blackstone’s greatest contribution to the development of the British legal system abides.
Lord Mansfield: Another great British reformer-judge was William Murray (later referred to as Mansfield after becoming the Earl of Mansfield.) The fourth son of Lord Stormont, Mansfield was made the Lord Chief Justice of the Court of King’s Bench and for 32 years Denning said: “He attained such ascendency over his colleagues that they hardly ever dared to differ from” the judge whose decisions in fact “were only reversed on two occasions.” Denning said that Mansfield “laid down principles of law which have since been carried over more than half the world.”
Doctrine of ‘utilitarianism’
And because Mansfield took such special interest in students that he made spaces for them in his court, a certain college brat named Jeremy Bentham who would grow to become a philosopher, an economist and a jurist -and who in fact would found the doctrine of ‘utilitarianism’-, was one of many regular student-visitors to Mansfield’s court, and who worshipped and adored him. Bentham himself said: “Days and weeks together have I made my pilgrimage to the chief seat of the living idol.”
And although even Denning admitted he could not list all the contributions of Mansfield to English law, he said that the man “laid down the principles of the law of insurance and of bills of exchange and… other commercial subjects in such a satisfactory manner that they have spread throughout the commercial communities of the world.” Mansfield was in fact “described by a great judge, Justice Buller, as the “founder of the commercial law” of England and by Denning as “the one who infused the principles of equity and good conscience into the rigid formulae of the British system of law.” He “extricated (the law) from pedantry, technicalities and narrow-mindedness”, bringing “into it broad principles of justice and equity”.
Judges, Our own:Such was the greatness and practical sense of juristic propriety of British judges from antiquity even to contemporary times, and such in fact was the texture of the English justice system, that Denning, in a feat of patriotic bravado once said that if “a future Prime Minister should seek to pack the Bench with judges of his own extreme colour”, British citizens would “need have no fear”, that such judges would be tools in the hands of political authority; because, as he put it the judges of England “have always in the past –and always will- be vigilant in guarding our freedoms.”
And not too long ago even Nigerians could proudly have been this confident about their judges. We had them too by the tons –judges who were no less erudite, no less bold and courageous; judges who were in fact no less concerned about law as they were about the object of law, which is to achieve justice: Justice Kayode Eso, described by Justice Fatayi Kuti in his book ‘Elias: A Man of his Time’ as a “Frontline judicial activist (and) a model of judicial uprightness, integrity and scholarship.” Akinola Aguda, “renowned criminologist”, author of many leading legal text books and Chief Justice of Botswana; and Justice Fatayi Williams, fourth indigenous Chief Justice of Nigeria, eminent jurist and author of the famed ‘Faces, Places and Cases’.
We had Justice Adetokumbo Ademola, first indigenous Chief Justice of Nigeria, who was reputed for “exemplary judicial courage and incorruptibility”; Justice Karibi Whyte, another erudite scholar and renowned author of ‘Law and Practice of the Federal High Court’ described as a “courageous Dicean jurist… and great teacher of law; And then Justice Teslim Elias, Chief Justice of Nigeria and President of the World Court, described by the Daily Times of 24, Aug, 91 as an “erudite international jurist, world acclaimed scholar, author and trail-blazer of the legal profession both in Nigeria and internationally”. We had it all. But when did we depart from this pristine ancestry? When did we lose it?
THE idea that the ‘hands’ of a judge are ‘tied’ by ‘unjust provisions’ of ‘law’ so that he can only rule in a manner that does not achieve ‘justice’ is lame, escapist and untenable.
The powers of a judge to decide what the law is knows no bounds. And so if the ‘law’ contains impurities which do not conduce to the attainment of justice, it behooves a judge not to surrender to those impurities but to ‘interpret’, ‘construe’ or ‘construct’ –where necessary- the law until it works justice.
Said Itse Sagay, “I don’t understand why (judges) would have the ‘law’ which is in conflict with ‘justice’ and (they will) prefer to apply the law”. Agbakoba put it even more dynamically when he said the idea that judges do not ‘descend to the arena’ is moribund.
Nowadays, to do justice, judges must ‘descend to the arena’. -“judges handling corruption cases” he said “must balance public opinion with law.
Denning said as much, in his other book Landmarks In The Law, that although a “Judge must not alter the material of which (the law) is woven”, yet “he can and should iron out the creases”.