The judging process and the personality of the judge - The contribution of Jerome Frank

AuthorGerard Quinn
PositionB.A. (NUI), LL.B. (NUI), B.L. (King's Inns), LL.M. (Harvard), S.J.D. (Harvard), Professor of Law, National University of Ireland, Galway
If the personality of the judge is the pivotal
factor in law administration, then [the] law
may vary with the personality of the judge…
(Jerome Frank, Law and the Modern Mind, p.
The Irish judicial system has expanded and
modernised very rapidly in the last decade or so. The
concrete achievements and future plans of the Courts Service
in particular inspire confidence that the system can yield
greater efficiency and transparency without sacrificing
fairness and justice. The eminent American jurist, Roscoe
Pound, had earlier developed a theory that long periods of
decay were often punctuated periodically by bursts of
creativity and energy in the legal order.1 There is no doubt
that the Irish legal system is now going through such an
unprecedented period of creativity.
Such periods of creativity are often characterised by a
mix of fruitful reflection about how well the system is
performing together with ambitious planning for the future.
The Working Group on the Jurisdiction of the Courts led by
Mr. Justice Fennelly is a prime example of this process of
141 Judicial Studies Institute Journal [2:2
1 Pound, The Theory of Judicial Decision, 36 Harv.L.Rev. (1923), 641.
* B.A. (NUI), LL.B. (NUI), B.L. (King’s Inns), LL.M. (Harvard), S.J.D.
(Harvard), Professor of Law, National University of Ireland, Galway.
fruitful reflection. Jurisprudence has something – if not a lot -
to offer this mix. One argument for jurisprudence is that it
creates an opportunity to develop deeper insights into law
which ultimately translates into better practical skills. In this
regard Oliver Wendell Holmes once wrote that
happiness…cannot be won simply by being
counsel for great corporations and getting an
income of fifty thousand dollars. An intellect
great enough to win the prize needs other food
besides success. The remoter and more general
aspects of the law are those which give it
universal interest. It is through them that you
not only become a great master in your
calling, but connect your subject with the
universe and catch an echo of the infinite, a
glimpse of its unfathomable process, a hint of
the universal law.2
Furthermore, reflective speculation is not merely good
in itself – it is becoming more of a necessity as the legal
system is being constantly re-shaped. Contending models for
reform ultimately rest on different value systems and on
different perspectives on the mix between efficiency and
fairness. Every concrete proposal for change rests on some,
usually unstated, value or value-system. John Maynard
Keynes was fond of saying that anyone who thinks they are
totally free from theory are usually the slaves to some defunct
theory.3 The process of revealing what these value-systems
are and how paradigms shift is useful in producing more
knowledgeable choices about the options for reform. That is
not to say that theory should determine practical solutions. It
is only to say that the process of stepping back from the
coal-face has a value.
2002] The Judging Process 142
3 Keynes quoted in Lowi, The End of Liberalism (2nd. ed., 1979), p. 1.
2 Holmes, “The Path of the Law”, (1897) 10 Harv.L.Rev. 461, 478.

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