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

• Author: Gerard Quinn
• Position: 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
• Pages: 141-162

THE JUDGING PROCESS

AND THE PERSONALITY OF THE JUDGE –

THE CONTRIBUTION OF JEROME FRANK

GERARD QUINN*

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.

111)

I. THE ADDED-VALUE OF JURISPRUDENCE IN A PERIOD OF LEGAL

REFORM

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.