26 Jun 2019

Hale's Resolutions - modified

Readers who have delved into Lord Thomas Bingham's excellent book, "The Rule of Law" would no doubt have been introduced to Sir Matthew Hale in Chapter 2. Hale was noted as a jurist and legal researcher, and his Analysis of the Common Law was influential on Blackstone's Commentaries.

 Bingham (Ch 2 (5)) quoted Hale's Resolutions, a list of 'Things Necessary to be Continually had in Remembrance'. 

Having given some thought to these resolutions, I had in mind that some were too antiquated to stand in a modern world, though they were likely to have been adequate in Hale's time. Resolutions 1 and 3, I reject in their entirety; God has no business in the administration of justice; neither King nor Queen. The Law should stand above all and no man should answer to more than the Rule of Law and his conscience. 

Having these thoughts, and similar, in my mind, I decided to rewrite Hale's list to fit my own thoughts and also to 'modernise' them to fit in with today's world/knowledge. 

1.    That in the pursuit of justice, I am bound by the Rule of Law and my conscience, and in seeking justice I will do so:

2.    With

a.    Forthrightness

b.    Purpose

c.    Tenacity

d.    Regard that the path to justice may not be easy or quick; but

3.    I will be prepared to do right, and my best endeavours will not be withheld for lack of trying; and

4.    I will be passionate about my cause but not a slave to my passions, or fall to them however provoked; and

5.    Focus my attention and energy to the business at hand; and

6.    Never prejudge before the entire matter is done and over with; and

7.   Recognise that bias and paucity of thought are my failures and no one else’s; and

8.    That discretion and compassion and mercy are equally part of justice and law as much as punishment and rehabilitation; and

9.    Law should not give way except and only to conscience and justice; and

10. That the law is supreme except as conscience and justice demands it to bend or fall.
Keeping in mind that I do not administer justice (Hale was a judge) but intend to practice law, resolution 1 is therefore clear in stating 'the pursuit of justice'. Note too, that 'justice' does not imply a "win at all costs" stance on behalf of a client. The aim should be to give your best, but if your client is guilty, then justice should still be administered by those so charged. The Rule of Law and your conscience should be your guide in doing what is right, and your best.
     Bias and paucity of thoughts refer to defects in thinking in yourself, and therefore has no one else to blame . This is where I am a strong believer in critical thinking. While studying law introduces elements of critical thinking, it does not go far enough on its own to really eliminate defective thoughts. Critical thinking is best practiced after studying it as a subject by itself.
     Resolutions 9 and 10 refer to conscience. Note that in this instance the conscience referred to is not my conscience as in Resolution 1, but is a reference to a 'collective' conscience (of society). So what was the law in instances such as permissible marital rape, outlawing homosexuality etc fell to the collective conscience of society through the judges administering what is right. The law as it stood then fell to the changes in society. This is what I mean by conscience.
     Thus, Resolution 1 is a reminder that if a law is unjustifiable (to a client or society), then I consider it a duty to argue for it to be changed or discarded. Resolution 10 then becomes clear in its intention.
      Any thoughts?

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