A Fair Trial Is A Utopia? ‘Judge Hercules’ from Law's Empire

(Not about me, my claims and courts’ adventures.) ‘Judge Hercules’ is a hypothetical figure introduced by legal philosopher Ronald Dworkin in his 1986 book Law's Empire. This idealized judge possesses superhuman intellect, patience, and legal knowledge, enabling him to interpret and apply the law with perfect consistency and moral integrity. Dworkin uses Judge Hercules to illustrate his theory that judicial decisions should be guided by coherent moral principles, rather than merely following legal rules or precedents.

Very interesting piece by Margarita Bocharova in the Signal: a fair and incorruptible democratic court, an independent court remains a symbol of justice in the last instance. For many people, it is also a necessary component of a good life. (At least, American presidents, British politicians, representatives of famous political dynasties and historians speak about it.)

FAIR TRIAL - this concept is inscribed in the Universal Declaration of Human Rights. The UN Commission on Human Rights considers a fair trial as one of the most important elements of democracy. Almost everyone agrees that "young democracies" should first of all ensure an independent fair trial (one, two). In "old democracies", in turn, the majority of citizens believe that an independent court is more important than, say, succession of power and fair elections.

However, what is a "fair and independent court" is a philosophical question: we all think we know the answer to it, but when we have to formulate it rigorously, it turns out to be unexpectedly difficult. 

Mexico has decided to elect judges by popular vote in September 2024. The president of the country, who proposed the innovation, stated that it would serve to "strengthen the ideals and principles of humanism, justice, fairness, austerity and democracy". 

But exactly the same measure did not work in Bolivia. In theory, the transfer of such a right to citizens should have ensured a belief in fair justice, but in practice the opposite was true. The electability of Bolivian judges led to their politicization, which ultimately undermined citizens' already shaky faith in the rule of law and political stability. 

Judicial reforms in Poland in 2019 and in Israel in 2022 were carried out under the banner of judicial independence, and opponents in both cases argued that the reforms actually made the courts more dependent on the ruling parties.

In short, in political rhetoric, an "independent court" is generally a court that doesn't depend on those you don't like; on those you do like, let it depend.

IS THERE SUCH A THING AS A FAIR AND INDEPENDENT TRIBUNAL? According to World Bank estimates for 2022, courts operated in a completely non-interventionist environment in Australia. The situation was close to ideal in Norway, Sweden, Finland, Portugal, Ireland, Iceland, Estonia, Austria and the Netherlands. 

As in all such indices (corruption, stability, freedom of speech, etc.), it is possible to guess the leaders and outsiders without even looking at the data: the best results will be in the rich Western countries, especially in the Scandinavian countries, and the worst in the Global South. Secular courts are also favored. And that's a big problem. 

Independence may be granted individually to each judge or to the judiciary as a whole - how do we know which is better? Or the local demand for justice may at some point require greater government involvement (this happens, for example, in disputes between overly powerful private individuals) - is this good or bad? Finally, courts may balance the public interest in different ways. Some may see this as a manifestation of democracy, while others may see it as a threat to independence. 

If judges are completely free from external pressure, how can they be prevented from deciding cases on the basis of personal biases or media publications they have read in their spare time? In the U.S., by the way, this is a common situation: judges of left-wing and right-wing views make different rulings in similar cases, citing different norms and precedents.

The whole system of independent courts is fragile even in the most developed countries. Small mishaps can shake the balance and cause unrest in society (here are a couple of examples: one, two). Each country builds its own system of checks and balances: there are regular public reports by representatives of the judiciary, mandatory interaction with journalists, codes of judicial ethics, and so on. 

The situation with the fairness of the courts is even more complicated than with their independence. People find it difficult to define what justice is, even in the most general sense. Almost 80% of Portuguese perceive justice as an equal distribution of income and wealth among members of society. But in Norway and the Netherlands, more than half of those surveyed disagree with this view. In 2023, an Ipsos survey showed that while in Peru two out of three people agreed that a just society is one of equal opportunity, in India only one in five supported this view, and a further 23% of respondents thought it was more important for justice that all members of society have the same standard of living.

In the US in 2024, the Pew Research Center found that supporters of Donald Trump were twice as likely to expect the justice system to impose harsher sentences on criminals. Among Biden supporters, the majority wanted to leave things as they are or reduce the severity of sentencing. These results suggest very different perceptions of justice.

Back in the middle of the 18th century, the Italian philosopher Cesare Beccaria insisted in his book "On Crimes and Punishments" that the primary function of the justice system is not to restore justice in some higher sense, but a much more modest one: to maintain order and balance in society - most modern legal systems are based on this principle (we have already talked more about it here and here). 

This sometimes leads to results that are absurd from the point of view of common sense. For example, stiffer penalties for economic crimes than for violent crimes. The logic here is not quite humanistic: fraud and tax evasion are dangerous not only for a particular person, but also for the "system as a whole". And for a particular person to have a better life, first of all, the smooth functioning of the "system as a whole" is necessary.

A FAIR TRIAL IS A UTOPIA?  Partly. But that doesn't mean the concept should be abandoned.  The American jurist Ronald Dworkin developed the idea of an ideal infallible judge - a kind of "Hercules the Lawyer". He considered his main strength to be his unlimited knowledge of the principles of law. These principles have not only legal, but also moral grounds - and "Hercules the Judge", being not only a jurist, but also a moral philosopher, on the basis of these principles can decide cases even if the law does not tell him what to do.

Say, a judge in an abstract country needs to decide whether a grandson can receive the inheritance of his grandfather, whom he killed for the sake of this fortune. Technically, there is no barrier to this in the law - after the grandson has served time for murder, of course. But "Judge Hercules" would not let it happen. He would have proceeded on the moral principle that a criminal cannot profit from his crime.

Dworkin believed that a "moral reading" should always be applied to existing law, and that centuries-old laws should be given current-day meaning. In this way, these laws would better meet public demands for justice - and maintain people's faith in their state. 

The problem with such a view is clear: morality is fluid, and there are hardly enough "Herculean judges". Nevertheless, society needs faith in abstract, lofty formulas. It is on the basis of values that are sometimes incompatible with reality that people create their identity and feel unity with their colleagues, fellow believers and fellow citizens. But this belief in high values needs something to back it up. 

One of the main theorists of justice, the American philosopher John Rawls, insisted: justice can exist in a modern legal system. It would simply be expressed not in terms of balance or truth, but in the form of a correct and impartial use of public rules. He called it ‘justice as rightness’.

(The most appropriate punishment for an autocrat would be a fair and incorruptible democratic court - this idea, in general, is not new. In its time, approximately the same demonstrative-democratic trial was organized for the "architect of the Holocaust" Adolf Eichmann (although, beforehand, the Israeli security services stole him from Argentina). The trial was then covered by the correspondent of The New Yorker magazine, philosopher Hannah Arendt. She told the world how Eichmann was burdened and exhausted by the successive and demonstratively independent trials and debates of the parties.)

First, the law should be written in such a way that people have an opportunity to fulfill or not fulfill it. Second, the meaning of norms should be precisely formulated. Third, similar decisions should be applied in similar cases. And, fourth, courts should apply the law adequately, and not drag outdated rules into a case just because it is customary.

Without the attainment of such formal justice, Rawls believed that the principles of liberty and equality could not be realized.

How far the real world is from this theoretical construct - this gives rise to public skepticism: people do not believe in justice, nor in a public morality that is one for all. They arbitrarily divide the world into "their own" and "others" - and do not see their fellow citizens as equal in rights and duties. Perhaps it is the belief in "justice as rightness" that can overcome this skepticism - and repoliticize citizens, that is, restore their confidence that their participation matters. 

It's tricky to pinpoint real-world judges and directly compare them to the hypothetical Hercules, as he represents an ideal rather than a realistic expectation. Judge Hercules is not a real person but rather a hypothetical figure created by legal philosopher Ronald Dworkin. He is presented as an idealized judge with superhuman intellectual ability and complete knowledge of the law. Dworkin used Hercules to illustrate his theory of law as integrity, arguing that there is always a single "right answer" to any legal question, and Hercules is capable of finding it. However, we can look for qualities that align with Dworkin's concept:

• Deep legal knowledge and intellectual rigor: Judges known for their profound understanding of legal principles, their ability to analyze complex cases, and their contribution to legal scholarship might be considered. In Singapore: Chief Justice Sundaresh Menon is highly regarded for his intellectual depth and contributions to jurisprudence. In the UK: Lord Sumption (now retired) was known for his formidable intellect and scholarly approach to law.
• Commitment to "law as integrity": This means striving for coherence and principle within the legal system, looking for solutions that fit with existing laws while upholding fairness and justice. This is harder to assess objectively, as it's about judicial philosophy. Judges who consistently demonstrate a commitment to upholding the rule of law and seeking just outcomes, even in difficult cases, might be seen as embodying this aspect of Hercules.
• Impartiality and objectivity: Hercules is unbiased and free from external influences. While no judge is perfectly objective, those with reputations for fairness and independence are closer to this ideal.

It's important to remember that legal systems differ, and what constitutes "Herculean" judgment in Singapore might not be the same as in the UK. Even the most skilled and ethical judges are human, with limitations and potential biases. Rather than seeking a perfect "Hercules" equivalent, it's more fruitful to look for judges who exemplify key aspects of Dworkin's ideal, contributing to a more just and principled legal system. While no real-life judge can fully embody the idealized "Judge Hercules" concept proposed by Ronald Dworkin, several more judges in Singapore and the United Kingdom have been recognized for their intellectual rigor, moral integrity, and commitment to justice.

• Justice Philip Jeyaretnam (Singapore): Appointed as a Judicial Commissioner of the Supreme Court of Singapore in January 2021 and as a Judge in November 2021, Justice Jeyaretnam has been noted for his expertise in arbitration, construction law, and litigation. He received the C.C. Tan Award from the Law Society of Singapore in 2020, which honors lawyers who exemplify the Bar's traditions of integrity, fairness, and gentlemanly conduct.
• Justice Lai Kew Chai (Singapore): Serving as a High Court judge from 1981 until his passing in 2006, Justice Lai was involved in several landmark cases. He was known for his meticulous judgments and dedication to upholding the rule of law.

• Baroness Brenda Hale (United Kingdom): As the first female President of the Supreme Court of the United Kingdom, Baroness Hale has been celebrated for her contributions to family law and human rights. Her judgments often reflect a deep commitment to justice and equality.
• Lord David Neuberger  (United Kingdom): Serving as President of the Supreme Court from 2012 to 2017, Lord Neuberger was recognized for his intellectual depth and fair-mindedness. He has also contributed to discussions on judicial ethics and the importance of moral courage in the judiciary.

These judges exemplify qualities akin to Dworkin's "Judge Hercules" through their dedication to legal principles, moral reasoning, and the pursuit of justice. Here are some notable cases involving Justice Philip Jeyaretnam and Baroness Brenda Hale:

• ByBit Fintech Ltd v Ho Kai Xin and others [2023] SGHC 199: In this landmark decision, Justice Jeyaretnam addressed the legal status of cryptocurrency assets. He ruled that crypto assets, such as the stablecoin Tether, are considered "things in action," granting them legally enforceable property rights. This judgment has significant implications for the treatment of digital assets under Singaporean law.
• Mah Kiat Seng v Attorney-General [2022] SGHC 200: Justice Jeyaretnam presided over a case where Mr. Mah sued the police for unlawful arrest under the Mental Health (Care and Treatment) Act. The court found that the arresting officer fabricated observations to justify the apprehension, leading to Mr. Mah being awarded $20,000 in damages. This case underscores the judiciary's role in upholding individual rights against unlawful state actions.

• R (Miller) v The Prime Minister [2019] UKSC 41: In a historic ruling, the UK Supreme Court, led by Baroness Hale, declared Prime Minister Boris Johnson's advice to prorogue Parliament unlawful. The court held that the suspension had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. This decision reinforced the principle of parliamentary sovereignty and the limits of executive power.
• Stack v Dowden [2007] UKHL 17: Baroness Hale delivered a leading judgment in this case concerning the division of property between cohabiting partners. She emphasized that in the absence of explicit agreements, courts should consider the entire course of conduct between parties to determine their respective shares. This approach marked a significant development in family property law, focusing on fairness and the realities of modern relationships.

These cases illustrate how both judges have shaped legal principles and protected individual rights through their thoughtful and impactful judgments. However, attributing judgments entirely to a judge's individual "Herculean" qualities is difficult, as judgments are often shaped by legal teams, precedents, and the specifics of the case. That said, here are few more examples where judges demonstrated qualities reminiscent of Judge Hercules:

• Chief Justice Sundaresh Menon in Hii Chii Kok v Ooi Peng Jin London Lucien and another (2017, Singapore): This case dealt with complex questions about the law of trusts and fiduciary duties. CJ Menon's judgment was praised for its clarity, rigorous analysis of legal principles, and its effort to create a coherent framework for understanding these complex areas of law. This aligns with Hercules' ability to find the "right answer" through deep legal understanding.

• Lord Sumption in Prest v Petrodel Resources Ltd and others (2013, UK): This case involved intricate company law issues and the "piercing the corporate veil" doctrine. Lord Sumption's judgment provided a comprehensive analysis of this doctrine, clarifying its scope and application. This demonstrates his intellectual rigor and commitment to legal coherence, key traits of Dworkin's Hercules.

It's important to note that these examples highlight specific aspects of "Herculean" judging, not a perfect embodiment. Finding a single judgment that perfectly encapsulates all of Hercules' qualities is unlikely. It's interesting to consider whether "Herculean" judging, as inspired by Dworkin's ideal, might be more prevalent in certain legal systems. There are factors that could influence this:

Factors that might favor "Herculean" judging in the USA:

• Strong emphasis on individual rights: The US legal system places a high value on individual rights and liberties, often leading to complex legal arguments and a need for judges to balance competing interests. This could encourage judges to delve deeply into legal principles and strive for nuanced interpretations, similar to Hercules' pursuit of the "right answer."
• Common law system: The US, like the UK, relies on a common law system where judicial precedent plays a crucial role. This requires judges to engage in extensive analysis of past cases and legal doctrines, potentially fostering a more "Herculean" approach.  
• Judicial review: The US Supreme Court's power of judicial review allows it to strike down laws deemed unconstitutional. This places a significant burden on judges to interpret the Constitution and weigh fundamental principles, potentially demanding a high degree of intellectual rigor.  

Factors that might make "Herculean" judging less pronounced in Singapore:

• Emphasis on efficiency and pragmatism: Singapore's legal system, while based on common law, also emphasizes efficiency and pragmatism. This might sometimes prioritize clear and practical solutions over highly nuanced or theoretical legal arguments.  
• Less adversarial system: While Singapore has an adversarial system, it may be less adversarial than the US. This could lead to less emphasis on elaborate legal arguments and a greater focus on finding mutually agreeable solutions.
• Stronger executive branch: The executive branch in Singapore generally plays a more prominent role compared to the US. This might lead to less emphasis on judicial activism and a more restrained approach to judicial decision-making.

• These are generalizations: Individual judges and specific cases can vary greatly within any legal system.

Many other countries, such as those in Europe with strong civil law traditions, could also exhibit "Herculean" judging in different ways. The nature of judging is constantly evolving, and factors like globalization and technological advancements can influence judicial approaches across different countries.

Ultimately, while certain legal systems might provide a more conducive environment for "Herculean" judging, the individual qualities and commitment of judges themselves remain the most crucial factor. It is fair to say that judicial behavior resembling "Judge Hercules"—defined by a commitment to broad moral reasoning, individual rights, and interpreting law in ways that create significant societal impact—may be perceived as more common in the United States compared to countries like Singapore or the UK. This difference arises from distinct legal traditions, cultural contexts, and institutional structure:

1.Judicial Philosophy and Role:

• United States: Judges, particularly at the Supreme Court level, often adopt activist roles where they are expected to interpret the Constitution in ways that address broad societal issues (e.g., Roe v. Wade, Brown v. Board of Education). This aligns with the idea of a judge who integrates moral reasoning with legal interpretation.
• Singapore and UK: Judges typically embrace a more restrained approach, focusing on interpreting and applying existing laws without venturing into activism. Singapore’s judiciary, in particular, emphasizes pragmatic and technocratic approaches over ideological debates.

2.Constitutional Framework:

• United States: A written constitution and a strong emphasis on judicial review provide greater scope for judges to address fundamental rights and principles.
• Singapore: Judicial review exists but is more narrowly defined, with judges emphasizing the rule of law and deferring to legislative intent unless clear violations of law occur. The UK, while having an unwritten constitution, also leans towards judicial restraint, although cases like Miller v. Prime Minister (led by Baroness Hale) show moments of judicial assertiveness.

3.Cultural Context and Judicial Independence:

• United States: A strong tradition of individualism and public scrutiny encourages judges to take bold stances. Lifetime appointments for Supreme Court justices further enable them to act with relative independence.
• Singapore: Judges operate within a framework that prioritizes stability, economic development, and deference to the executive branch. Judicial decisions tend to align with broader societal goals rather than challenge them dramatically.
• UK: Judges maintain independence but often navigate a balance between deference to Parliament (sovereignty of Parliament is a core principle) and upholding the rule of law.

4.Case Law and Precedent:

• United States: Judges frequently create landmark rulings that set new precedents, influencing law and society directly.
• Singapore and UK: Precedent plays a key role, and significant changes often emerge gradually or through legislative action rather than judicial intervention.

The perception that "Herculean" judicial behavior is more common in the U.S. is largely accurate, driven by the nation's constitutional framework, cultural expectations, and judiciary's role in shaping public policy. In contrast, Singapore and the UK lean towards judicial restraint, with exceptions in cases of high public or constitutional significance.

• In the U.S., cases with dramatic implications (e.g., civil rights, abortion, gun laws) often receive extensive media coverage, reinforcing the image of judicial boldness.
• In Singapore, the judiciary is seen as an arbiter of disputes and a stabilizing institution rather than a driver of social change. 

The UK judiciary occasionally demonstrates activism (as in Miller), but it is more restrained compared to its American counterpart.

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