This paper was prepared for a conference entitled “Transnational Judicial Dialogue: Strengthening Networks and Mechanisms for Judicial Consultation and Cooperation,” held at Harvard Law School on December 1-2, 2006 and sponsored by the American Society of International Law and Harvard Law School.
I. A Great Trust
To be a judge is to enjoy a great trust. To judge others involves listening to their stories and applying the law to the essential facts to arrive at conclusions that conform to law but, where possible, also appear to be just.
Listening to the stories that unfold before us in trial and appellate courts, we learn the details of our own legal systems. I have been a judge in Australia since 1975. I have therefore heard many stories, met many colleagues, and learned many lessons about judging and its challenges.
The participants in this dialogue have come together at this famous university to exchange experiences and ideas and to facilitate the so-called “invisible college” of judges around the world. The problems presented to us in court are not always concerned with universal themes. Many have a purely local significance; they involve nothing more than the application of highly specific municipal law. Yet experience as a judge and dialogue with judicial colleagues across borders do teach the commonality of some problems and the universality of the quest to protect basic human dignity
and human rights. This is an important lesson that judges have begun to learn everywhere. They can reinforce their attention to the universal values of human civilization by occasionally meeting each other, exchanging stories and experiences, and together strengthening their commitment to the performance of their duties. Such a commitment requires them to address substantial things. While rules are important, because they provide the foundations for the rule of law, it is the substance of the law that should govern. Formalism, and a purely mechanical approach to the
judicial function, undermines the true fulfillment of the judicial role.
In his remarks to this symposium, Justice Aharon Barak, until recently the President of the Supreme Court of Israel, insisted that it is not enough for us simply to exchange stories about how we do things back home. Ultimately, that is a banal exercise—a kind of judicial geography lesson. Instead, he urged us to seek out the universal themes that occasionally arise from the way we do things. Following upon this suggestion, I want to tell five stories in order to illustrate some of the lessons that we can learn from each other.
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