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.