"The appearance of justice": public justification in the legal relation.

• Author: Schumann, Fredrick

I INTRODUCTION II PUBLIC REPUTE DISCOURSE Relevant Features of Public Repute Discourse Public Repute Discourse Involves Repute in the Eyes of a Reasonable Person Public Repute Discourse is Self-Reflexive But Not Empty The Reasonable Person in Public Repute Discourse and in Negligence The Instrumental Rationale and Its Shortcomings In General Confidence in the Administration of Justice in R. v. Hall III PUBLIC REPUTE DISCOURSE AND THE PUBLIC JUSTIFICATION OF LEGAL RESULTS Relations, Personae, Obligations, and Justification Public Justification in The Political Relation Public Justification in Juridical Relations The Legal Relation The Public Justification of Legal Results Openness and Cogency Impartiality and Independence Self-Reflexivity, the Problem of Ideology, and Education IV CONCLUSION Abstract

"Public repute discourse" occurs when courts attend to how their actions appear to the public. This discourse is pervasive and fundamental to courts" sense of their own legitimacy. It usually involves a "reasonable observer"--an idealized member of the public from whose objective perspective courts evaluate the appearance of their own actions. This article argues that courts' concern about public appearance, while obviously not about the abstract correctness of their decisions, is equally not aimed at securing the support of the actual public. It is ultimately about the legitimacy of the legal obligations they expound.

First, this article argues that courts care about the public appearance of their actions because abstract truth is not the criterion of legitimacy for legal obligations; legal obligations must be justified as authentic. Second, the article argues that courts care about how their actions appear to a reasonable observer because all legitimate obligations must be publicly justified, and that the right-minded and well-informed person about whom courts habitually speak is the persona to whom they must address a public legal justification. The article discusses public justification in the political relation and in the juridical relation, distinguishing both from justification in the legal relation, which is my main subject. Finally, the article examines several familiar features of adjudication and argue that they are best understood as facilitating public justification to the reasonable observer of the legal system.

Resume

Un > se produit lorsque les tribunaux considerent comment leurs actions seront percues par le public. Ce discours est dominant et fondamental aux tribunaux pour qu'ils se sentent legitimes. Le discours inclut habituellement un > -- un membre idealise du public avec une perspective objective dont les tribunaux se servent pour evaluer l'apparence de leurs propre actions. Cet article propose que le souci que les tribunaux portent a l'apparence publique, quoiqu'il ne concerne pas la validite abstraite de leurs decisions, ne vise pas non plus a obtenir le support du public. Il en est ultimement une question de valider les obligations legales que les tribunaux imposent.

Cet article suggere en premier lieu que les tribunaux se soucient de l'apparence publique de leurs actions parce que la verite abstraite n'est pas le critere de legitimite pour les obligations legales; ces obligations doivent etre justifiees comme authentiques. Deuxiemement, l'article propose que les tribunaux se soucient de la perception qu'aurait un observateur raisonnable de leurs actions car toute obligation legitime doit etre justifiee publiquement, et parce que la personne bien informee et possedant un bon etat d'esprit dont les tribunaux font habituellement mention est le personnage auquel ils doivent adresser une justification legale et publique. Cet article discutera de justification publique au sens politique et juridique, tout en distinguant les deux de la justification au sens legal, qui est mon principal sujet. Finalement, cet article examinera plusieurs dispositifs familiers du processus de jugement et propose qu'ils soient mieux comprehensibles s'ils facilitent une justification publique dirigee a un observateur raisonnable du systeme legal.

I INTRODUCTION

Why do courts care about how their actions appear to the public, rather than how their actions really are? Who is the right-minded and well-informed person whose reaction courts consider when they discuss public appearance? My answer to the first question is that courts care about the public appearance of their actions because abstract truth is not the criterion of legitimacy for legal obligations; legal obligations must be justified as authentic. My answer to the second question is that all legitimate obligations must be publicly justified, and that the right-minded and well-informed person about whom courts habitually speak is the persona to whom they must address a public legal justification. Furthermore, courts' concern about public appearance, while obviously not about the abstract correctness of their decisions, is equally not aimed at securing the support of the actual public. It is ultimately about the legitimacy of the legal obligations they expound.

In Part I, I describe the courts' concern about public appearance, which I call "public repute discourse", giving some examples and setting out its basic features. In Part II, I critically analyze the tendency to interpret this discourse instrumentally, as aimed at securing actual confidence in courts and actual obedience to their judgments. I also criticize the Supreme Court of Canada's analysis of public confidence in R. v. Hall. (1) In Part III, I develop an account of three distinct human relations in terms of obligation and justice: the juridical, the legal, and the political. I argue that under all three, legitimate obligations must be publicly justified to idealized personae. I argue that the reasonable person involved in courts' concern about public appearance is the persona corresponding to the legal relation. Finally, I discuss the examples of the concern with public appearance, and explain how they go to the public justification of the authenticity of legal results.

II PUBLIC REPUTE DISCOURSE

The law is concerned with the way it appears to the public. This concern appears as a part of many different legal tests. Sometimes it appears in an area of pure judge-made law; sometimes it appears in a statute, either by express language or through statutory interpretation; sometimes it appears as part of a constitutional provision. Let me call this phenomenon "public repute discourse".

Public repute discourse relates to three general categories of legal issues: (1) judicial impartiality and independence; (2) (2) participatory procedural rights at trials and at other adjudicative proceedings; (3) and (3) the misconduct of non-judicial actors in the legal system--in other words, lawyers, prosecutors, and police. Along with these general categories, I will also consider two uniquely Canadian instances where the law is concerned with its own repute: the "public confidence" ground for the denial of bail to a criminal accused, and the exclusion of unconstitutionally-obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. (4)

Let me briefly set out some representative examples of the three main categories of public repute discourse. For the first category, whether a judge--or other adjudicative decision-maker--is disqualified or must recuse himself or herself, usually depends on whether a reasonable person might perceive the judge as biased, and not whether the judge actually is biased. (5) The former condition is called "reasonable apprehension of bias". (6) When common law jurisdiction courts discuss bias, they still quote Lord Hewart C.J. in R. v. Sussex Justices, Ex parte McCarthy: "[I]t is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (7) This has become something of a maxim or touchstone in all legal areas where public repute discourse appears. More recently, Lord Denning M.R. made clear the importance of appearances when determining whether or not a judge must be disqualified:

[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. (8) For the second category, courts often see the accused's right to be present during trial (9) as important because the public would perceive the trial as unjust if it were conducted in the accused's absence. In R. v. Barrow, (10) the trial judge held interviews with jurors--out of the accused's earshot--in order to screen them for partiality. Chief Justice Dickson held that even if this procedure was legally permissible in a technical sense, its appearance to the average citizen meant that it could not be condoned:

The argument of the Crown in this appeal does not address what may be the most important aspect of the case, namely, the appearance of justice. Even if the two-stage analysis of the empanelling process is a legally accurate description of the interplay of the Criminal Code and the Nova Scotia Juries Act, it leaves out of account the effect of the proceedings in this case as they would appear to the average citizen: prospective jurors were able to speak to the judge in private, albeit in open court, and be excused from jury duty with no reason given ... The average citizen watching would not likely appreciate the legal categorization of the judge's power to excuse for personal reasons ... The decision should not turn solely on the technical definition of when the trial began. (11) Here, interestingly, public reaction weighs in favour of an interpretation of the law over another that...