Some years ago I found myself at dinner with a handful of judges – a bench is the collective noun. They were talking shop, and I was politely resisting the urge to take notes. The conversation was exotic in content, rather familiar in form. There was a fair amount of banter, of chuckling and teasing as they recalled certain of each other’s judgments. They quoted well-turned phrases and fondly remembered ingenious conclusions. Clearly, they read each other closely. They may have been a little harder on the judgments of those not present. How easily, I thought at the time, this bench could be mistaken for a group of novelists discussing each other’s work, reserving harsher strictures for those foolish enough to be absent.
At one point, our host, Sir Alan Ward, an appeal court judge, wanting to settle some mild disagreement, got up and reached from a shelf a bound volume of his own judgments. An hour later, when we had left the table for coffee, that book lay open on my lap. It was the prose that struck me first. Clean, precise, delicious. Serious, of course, compassionate at points, but lurking within its intelligence was something like humour, or wit, derived perhaps from its godly distance, which in turn reminded me of a novelist’s omniscience. I continued to note the parallels between our professions, for these judgments were like short stories, or novellas; the background to some dispute or dilemma crisply summarised, characters drawn with quick strokes, the story distributed across several points of view and, towards its end, some sympathy extended towards those whom, ultimately, the narrative would not favour.
These were not cases in the criminal courts, where it must be decided beyond reasonable doubt whether a man is a villain or the unlucky victim of the Crown Prosecution Service. Nothing so black and white, nothing so noir or pulp. These stories were in the family division, where much of ordinary life’s serious interests lie: love and marriage, and then the end of both, fortunes querulously divided, the bitterly contested destinies of children, parental cruelty and neglect, deathbed issues, medicine and disease, religious or moral disputes complicating matrimonial breakdown.
The choices for a judge are often limited to the lesser harm rather than the greater good. When mother and father cannot agree, the court reluctantly assumes the role of the “judicial reasonable parent”. Here, in my lap, were realistically conceived characters moving through plausible, riveting situations, raising complex ethical questions. If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad.
Ian McEwan, “The Law versus Religious Belief,” The Guardian