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Reply - Justice Albie Sachs 39
but had even succeeded in getting the Universities, which they
treated as subalterns, to extol its timeless virtues.
Then much later when I myself had been ‘elevated’ from being
professor to the Bench, I came across an address in which US Supreme
Court Justice William Brennan provided further illumination.
Criticising what he saw as the deadening role of the desiccated,
precedent-based legal text-book, he explained, in an address entitled
Reason, passion and ‘The progress of the law’, that the judicial
branch in his country had been born not on the lofty peaks of pure
reason, but in the trenches of partisan politics. 1 In response, two
important checks on judicial discretion had been institutionalised —
the recording of precedent, and the requirement of a public and
reasoned explanation of the judicial result. The outcome was an
endless string of cites of precedent that began to dominate judicial
opinions.
The effect of this practice was to distance the judge from the
outcome of the case: It appeared that precedent alone determined
each outcome. Brennan observed that the rise of the legal treatise,
with its strangely disembodied character, intensified this distancing
process:
The goal of the treatise — to classify reported cases into objective and
determinative categories of legal principle — appealed to the positivist
minds of the late-nineteenth century. As one historian had put it:
The legal treatise was regarded by its admirers as above all
demonstrating the ‘scientific’ nature of the law. Through classification
of subjects, it sought to show that law proceeds not from will but from
reason. Through its ‘black letter’ presentation of supposed ‘general
principles’ of law it sought to suppress all controversy over policy while
promoting the comforting ideal of a logical, symmetrical and, most
importantly, inexorable system of law.
Conspicuously absent from the treatises was any narrative voice. The
earliest treatises contain no commentary whatsoever, and even in later
editions authors eschewed personal commentary on the cases and
principles. The absence of commentary was consistent with, and no
doubt helped to reinforce, the nineteenth-century conception of law as
something that judges discovered but did not help define. 2
Brennan added that we could now begin to understand why this
conception of judge-as-oracle arose, and why the legal community
clung so tenaciously to it.
1
(1988) 10 Cardozo Law Review 3.
2 As above.