Judges As Poets?

The poet "judges not as the judge judges but as the sun falling around a helpless thing." Walt Whitman - Preface to the Leaves of Grass (1855)

WH Auden - Law, Like Love:

...Law, says the judge as he looks down his nose,

 Speaking clearly and most severely,

Law is as I've told you before,

Law is as you know I suppose,

Law is but let me explain it once more,

Law is The Law...

Law is the clothes men wear...

From the two excerpts above, you have probably already formulated the premise of this blog: comparing and contrasting the differing viewpoints of poets through verse as opposed to judges through the formality of the law. Although that is the correct assumption, the bigger question is how did you come to that conclusion? Well, simply by reading the verses and extrapolating through their meaning. Thus, we come to the point: poetry can and does express in a few words what prose expresses in many. Law, by its very nature, tends to the prose side for that very reason. In other words, in law, verbosity reigns.

And yet, poetry does have a place in legal reasoning. As discussed yesterday, the complete versification of a judgment is frowned upon, but the use of relevant and timely excerpts of poetry or sayings of a poet to emphasize or illuminate a legal point, has an accepted place in the legal arena. The Honourable Justice Randall Scott Echlin, sitting on the Ontario Superior Court of Justice before he passed away, is a case in point. Although his practice area was employment law, his broad use of the wisdom of the poets in his judgments makes one wonder what his undergraduate degree was in. In three of his judgments, I found references to Ralph Waldo Emerson, Goethe, and Henri Frederic Amiel. Each of these excerpts provided an "opener" to the judgment and provide support and meaning to the reasons. 

Alberta is not immune either as Provincial Court Judge Ann Brown used the same quote of the poet Ovid in three sentencing cases. But the laurel wreath goes to British Columbia Provincial Court Judge Doherty who, in sentencing the accused, in a tragic manslaughter case, quoted Lord Byron from canto the third in Don Juan "All tragedies are finish'd by a death."

Upon reading that seven word phrase, there is a clear understanding by all of the immense impact a moment in time can have on a person's life and another person's death. And it is the poets and their poetry that can help us see this.

 

Poetic Justice Revisited

In a previous blog entitled Poetic Justice, I discussed the use of poetry in the courtroom. I referred to a recent Ontario case in which the Assistant Crown Attorney gave his submissions in rhyming verse. Subsequently, the Crown apologized for taking such poetic license. This case illustrates the uncertain role poetry has in the legal arena.

Often poetry is deemed incompatible with the legal precepts of the law and is frowned upon such as in the Pennsylvania Supreme Court decision in Porreco V. Porreco. In that decision, Justice Eakin's dissent was written entirely in rhymed verse. The majority, which included the Chief Justice, was not so moved by the poetry and, in a strongly worded decision, disapproved of the unconventional dissent.

On the other hand, poetry has been used effectively in many decisions to provide guidance on an issue or as a meaningful metaphor for the case. In these instances, the Judge uses an excerpt or line from a poem to emphasize the point. In tomorrow's blog, I will continue the search for the poetic in law with a survey of the Canadian cases, which although not fully versified, do use the power of poetry or words to it's fullest effect. On that note, I leave you with the poem entitled Power of Words by the 19th century British poet Letitia Elizabeth Landon:

'Tis a strange mystery, the power of words!

Life is in them, and death. A word can send

The crimson colour hurrying to the cheek

Hurrying with many meanings; or can turn

The current cold and deadly to the heart.

Anger and fear are in them; grief and joy

Are on their sound; yet slight, impalpable:-

A word is but a breath of passing air.

 

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead?