Justice is blind. And, judges should set aside their personal views and experiences when
deciding cases, only having regard for the law.
Introduction
Justice Saunders reasoned as follows:
Difference is as natural as breathing. Infinite varieties exist of everything under the
sun. Civilised society has a duty to accommodate suitably differences among human
beings. Only in this manner can we give due respect to everyone’s humanity. No one
should have his or her dignity trampled upon, or human rights denied, merely on
account of a difference, especially one that poses no threat to public safety or public
order.1
This quote exemplifies one concept of legal realism; judges should be influenced by the
public good to effectively dispense justice as demonstrated in the CCJ's handling of
McEwan's case. This quote acknowledges the fact that a judge should judge a person
considering if the individual poses a threat to public safety or public order but do so in a way
that respects the dignity of humanity. Legal Realism is a school of thought created by a group
of American legal theorists who challenged the ideas about legal reasoning. They believe that
judicial proceedings are a subjective exercise which produces vague, inconsistent, and often
contradictory results due to the influence of personal views and experiences. When deciding
cases, judges should be more open as to the extra -legal factors that contributes to their
judgements. Judges should be influenced by matters of public policies and social sciences to
dispense justice and be transparent about the extra-legal factors that affects their outcome.
Law is not clear cut; it is filled with gaps with no real answer. As a result, realist
suggest that judges should interpret and apply the law with public policies and social sciences
in mind. This will aid in filling the gaps. Oliver Holmes stated that law is experience, it is
beyond just mere semantics, it is the way of life of the people.2 As such, it should not have a
confined definition because it has many elements to it. For instance, the legislature, the
judiciary, and the executive are all people of society and when the legislature make laws, it is
made for the good governance of the country. Though the law may sometimes be vague,
realist argues that the role of the judges then is to interpret and apply the law with public
policies and social sciences in mind instead of extra-legal factors. Why? The law cannot rule
if it cannot protect.3 We were privy to be exposed to this in McEwan et. al v AG of Guyana4
1
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), para [1] (Justice Saunders)(emphasis added)
Brian H. Bix, Jurisprudence: Theory and Context (8th edn, Carolina Academic Press 2019), para 17-01
3
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), para [119]
4
[2018] CCJ 18 (AJ)
2
620127317
LAW2510 Reaction paper N.O.2
Justice is blind. And, judges should set aside their personal views and experiences when
deciding cases, only having regard for the law.
where, it was established by the CCJ that the law was vague.5 The law violated the rights of
the individuals and was unconstitutional. In finding that the law was vague the CCJ even
examined the purpose of the law. They found that the law was not only vague, but that it was
arbitrary and discriminatory. The decision was then influenced for the public good and the
law was struck down.6 This is the benefit of legal realism as judges are using their social
advantage. Judges do much more than make laws whatever their decision is, it impacts
society as this is what tells the ‘bad man’ what lands he/she in jail. 7 When judges clarify the
vagueness of a law through their interpretation and application of it being influenced by the
public good. The public will then gain more trust in the judicial system and will be more
inclined to believe that they are being tried by an ‘impartial court established by law’. 8
The question then raises, how did the Magistrate, High Court and the Court of Appeal
interpret and apply the same law to the same facts yet found nothing wrong with the law but
the CCJ did? In fact, the lower courts upheld the convictions of the individuals and the CCJ
acquitted them. This is what legal realists are arguing about, there had to be an extra-legal
fact in play which affected the outcome of the judges. 9 Arguably, one of the extra-legal
factors was disclosed in the Magistrate’s remarks to the appellants upon imposing the
sentence. The Magistrate said that the appellants should go to church and give their lives to
Jesus Christ. The Magistrate told them that they were confused about their sexuality; that
they were men, not women.10 This can be classified as a personal view that the judge had
which may have influenced her ruling. When the argument was raised as to the judge’s
remarks, the Court of Appeal held that there was nothing wrong with what the judge said.
However, the CCJ found that the magistrates remarks were inappropriate and was not aligned
with the societies views as the society is a secular based society. The CCJ also found that the
remarks encouraged stereotypical views about the individuals as well as found the remarks to
be discriminatory. The impartial court that the individuals were obligated to was not given to
them.11 This is the impact of judges using extra-legal factors to pronounce judgements. The
CCJ judging the case based on public policies noted the remarks of the Magistrate judge to
violate the rights of the people and offered remedies for the damages suffered.
5
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), para [80]
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), para [85]
7
J. E. Penner (ed.), McCoubrey & White’s Textbook on Jurisprudence (4th edn, Oxford University Press 2008)
8
Jamaica (Constitution) Order in Council 1962, Sch 2, S16
9
Brian H. Bix, Jurisprudence: Theory and Context (8th edn, Carolina Academic Press 2019)
10
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), para [10]
11
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), paras [90-91]
6
620127317
LAW2510 Reaction paper N.O.2
Justice is blind. And, judges should set aside their personal views and experiences when
deciding cases, only having regard for the law.
Formalists are of the view that judges’ decisions are influenced based on the law. The
theory places confidence in the inclusive coverage of both common and statutory law, as well
as the capability of a judge to identify the appropriate law in developing a conclusion.
Formalists believe once the facts have been determined, the judge will find a suitable statute
and make the right decision. Realists reject this theory because neither element of the formula
(the facts nor the rule of law) are the major factors of a judicial decision. Judges are humans
who are subject to flawed assessments of facts, as well as issues of character. The facts of a
case are not fixed, they are an unidentified component, incapable of precise prediction. As
such, the facts of a particular case are not a major element of a judge's decision. Realists
believe that laws can be disregarded or obstructed at a judge's discretion, and is, therefore,
misleading. Hence, neither the facts nor the law is significant foundations for judicial
decisions. Instead, the judge is influenced by external legal factors which is responsible for
legal decisions. Judges should be more transparent as to the extra -legal factors that
contributes to their ruling. Research have shown that judges are influenced by their personal
experiences, morals, race among other factors are present. A judge himself found himself
aware of these extra-legal factors and admitted that he was aware that these factors influenced
his decisions. He became careful to render a decision based on the law and notes that the aim
is for the litigants to receive a fair trial which will encourage their faith in the justice
system.12 This is the wholistic aim of the realist for the justice system to actually work for the
people. This includes the transparency of the judges. When judges rule on a case it must be
seen based on the ruling of the case the public policy that is understood from the case why the
judge ruled how they ruled. This was seen in the case of McEwan et. al v AG of Guyana
[2018], as it was evident that the judges presiding in this case ruled based on the public
policies and social sciences. They pointed out that Guyana is a secular society as such the
remarks by the Mcagistrate was against what the Guyana stands for.13
In conclusion, Laws are not rationale laws are ambiguous, the facts of case may not
be interpreted correctly by the judges. Hence, when judges are interpreting the law, they
should be transparent as to the extra-legal factors that affected their judgement correct it by
interpreting and applying the law with public policies or social sciences in mind. This will
produce consistent and just results that affects the judge’s credibility.
12
Capurso, Timothy J. (1998) "How Judges Judge: Theories on Judicial Decision Making,"University of
Baltimore Law Forum: Vol. 29 : No. 1 , Article 2.
13
McEwan et. al v AG of Guyana [2018] CCJ 18 (AJ), para [3]
620127317
LAW2510 Reaction paper N.O.2