“Judges make their law in accordance with the times and based on their own prejudices and view of the world.”
Those were the words of retired judge of the Supreme Court of Appeal, Robert Nugent, at a U3A Settlers Park gathering on June 27. His address was titled ‘Cabin Boys, Courts and Constitutions: a brief look at how law is made’.
Judges have always made a great body of laws known as the common law which is under constant evolution, Nugent told his audience. And there was no big “rule book” of some kind that they turn to, to do this.
Nugent referred to a series of lectures published in The Common Law by Oliver Wendell Holmes Jr who said laws were created not through logic, but experience. Nugent explained that this experience included the prevalent moral and political theories, public policies and even the prejudice of the judges.
“These [judges] are ordinary people – and we all have our prejudices. Judges make laws in accordance with the times and their own prejudices – their own view of the world,” he said.
“The problem with that is that every generation is wiser than the one before and wiser than the one to come. So often, judges can think that they have this great wisdom that can surpass generations.”
To demonstrate the influence of values and mores on how judges make laws, Nugent contrasted the consequences for the killers of 17-year-old cabin boy Richard Parker in 1884, and the throwing overboard to their deaths of 138 slaves, 80 years earlier.
Parker at the hands of fellow-seafarers Tom Dudley and Edwin Stephens in 1844.
Parker, 17, was one of a crew of four hired by a wealthy Australian to sail the yacht Mignonette from Southampton, England, to Australia. Around 2 600km north-west of Cape Point, a massive wave struck the boat, damaging and sinking it. The four managed to get away from the wreck in the lifeboat.
After 18 days and with the emergency food and water supply finished, they turned to the ‘custom of the sea’: if seafarers were in distress at sea and without food or water they would draw lots to cannabilise the unfortunate one to save the others.
“So Dudley, the captain, suggested they draw lots so they could decide who should be cannabalised.”
The fourth crew member, Edmund Brooks, would have nothing to do with this plan, but Dudley and Stephen decided that Parker should be cannabilised to save them.
According to the account, Dudley and Stephens said a prayer before slitting the boy’s throat.
A German boat eventually rescued them and dropped them off in Falmouth, Cornwall.
The Merchant Shipping Acts at the time required statements in the event of a shipping loss. All three surviving crew were candid.
“There being this ‘custom of the sea’, the [Dudley and Stephens] were rather surprised that they were charged with murder,” said Nugent.
“There are some cases in the law you are entitled to kill someone in self-defence… when someone is about to attack you or kill you, you can kill them in return,” explained Nugent. But it has never been tested in the law whether you may do that of necessity to save yourself.”
The judges in the subsequent trial decided that killing someone in this situation was not out of necessity and they were therefore not entitled to kill Richard Parker. So they convicted Dudley and Stephens for murder and sentenced them to death, Nugent said.
“So if you look at that how did judges decide the basis of that question – there is no rule book. They decided the outcome on what judges felt should be the answer – nothing more,” said Nugent.
The community was outraged at the judge’s finding and the home secretary commuted Dudley and Stephens’ sentences to six years in jail.
Insurance claim
By contrast, 80 years earlier, in 1781, a British ship called Zong sailed for Jamaica. On board were 138 slaves, destined to work the sugar cane fields. A navigation error lengthened the trip and the ship was going to run out of drinking water. To save water, the ship’s crew threw 138 slaves overboard – “men, women and children”. The horrendous mass murder is today known as The Zong Massacre.
The matter ended up in the British courts and the question that was posed was not whether this action also constituted necessity in killing some to save the lives of others.
“Nothing of the sort”, said Nugent, proceeding to explain.
It was common business practice at the time to take out insurance on the lives of enslaved Africans. Instead of being about the relative value of human lives, this court case, Gregson v Gilbert (1783), centred around whether the slave-trading syndicate was entitled to insurance on what they considered their “cargo”.
Slave owner William Gregson had claimed an insurance payout for those thrown overboard and so the case before the courts was to determine whether the navigational error constituted being at the mercy of perils of the sea. The case was presided over by Lord Justice Mansfield.
“As it turned out, the captain was ruled negligent and this wasn’t [deemed] a peril of the sea.
“What is striking is that there is not a word about throwing people overboard – whether that is a good thing or a bad thing,” Nugent said. “So one sees how common laws are developed not by logic but by experience – and experience was the believed morality of the time.”
“Judges are the people of their time and at that time slavery was accepted. Judges thought nothing of slaves who were treated like cargo and were thrown overboard.
“Judges make the law on their own intuition – what they think is right for the time and for their own prejudices,” said Nugent, bringing the point home.
Bill of RIghts
Judge Nugent turned to law-making in South Africa whose Constitution contains and expansive Bill of Rights.
“Once again the judges have become pivotal because they have decided what the words of the Constitution mean,” Nugent said.
The constitution referred to the democratic values of dignity, equality and freedom.
“Everyone is equal before the law and has the right to equal protection before the law It was left to the judges to decide what was equal before the law.
“What is unfair discrimination? What is non-racialism? What does it all mean? Well we are left with judges who will decide,” said Nugent.
“There are 11 judges in the Constitutional Court, the highest court … of which a quorum is nine. Who are these judges?
“The fact of the matter is that they are also people of their time,” said Nugent.
- This article was first published in Talk of the Town, July 11, 2024. The newspaper serving the communities of Ndlambe and the Sunshine Coast, with a weekly wrap of Makhanda news, is available at stores from early on Thursdays.