The Australian legal system appears to be under stress. More is asked of it, and it is cut less slack. The family courts are crowded as cases are often bitterly fought and protracted as clients and lawyers resist negotiation. Magistrates complain of heavy workloads that leave no space for reflection.
At the same time judicial discretion is increasingly restricted by mandatory sentencing and limitations in access to bail and remand. Politicians, including attorneys general, are quick to criticise judicial decisions with which they disagree. Social media has increasingly assumed a judicial function of naming and punishing offenders, and victims of crime demand a more central say in sentencing.
Debate about the independence and the dignity of the law has always been present. Nevertheless most societies take pains to reinforce trust in those who administer justice. Some elements in our culture, however, put that trust at risk. They deserve reflection.
It is customary for rulers to exalt the law and its processes and for those caught up in its practice criticise it. Many historians have seen the law as the great achievement of the Roman Empire, and have credited the British with bestowing on its colonies a great gift in the English legal system. The dignity of the Law is symbolised in solemn court rituals and dress, in the state honours that judges have routinely received, and in the practice of conferring on retired judges the responsibility for Government enquiries.
Critics, however, have always scratched away at the mystique of the law by exposing the venality, pretensions and incompetence of its administration. Colonial research, court dramas, novels and levelling movements in society have all set out to expose the clay feet on which the statues of lawgivers rested.
St Augustine was one of the most incisive social critics in the ancient world. He contrasted the glorious public image of Roman institutions and their representatives with their messy human reality. In his time judges could order complainants, defendants and witnesses to be tortured in civil cases when necessary to establish the truth of their evidence. He argued that the harm done to the victims of torture by the judge’s decision to impose it was certain, but that both the confessions gained through it, and the protestations of innocence maintained despite it, were uncertain testimonies of truth. And yet, although judges remained in their ignorance after resorting to torture, they continued routinely to rely on it.