U.S. and Hong Kong (1999)

JUSTICE KENNEDY SPEECH TO HONG KONG HIGH COURT

Following is the official text of Justice Kennedy's speech:

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Associate Justice Anthony M. Kennedy
United States Supreme Court
Speech to the Judiciary at the High Court
Hong Kong

February 5, 1999

JUSTICE KENNEDY: Chief Justice Li and my fellow adherents to the idea and the reality of the Rule of Law. Thank you for the gracious welcome extended to me here in Hong Kong and here this afternoon. It is an honor to stand close to those of you who are in the front lines in a never-ending quest for freedom under the Rule of Law.

It is our human condition, it is our common fate that we may never know the verdict that history returns on our efforts, our attempts to shape our own times. We do not know whether you in Hong Kong are writing a quiet epilogue, or are instead writing a prologue for what will become a new and noble chapter in the history of the law. I hope and pray it is the latter.

Being proximate to so many members of the judiciary who have recent close ties to the common law and to England, much as we had in America some centuries ago, reminds me of our late Chief Justice, the wonderful Warren Burger. Chief Justice Burger was enamored of English legal institutions, and he was a close friend of Lord Hailsham, then the Lord Chancellor. He was delighted when Lord Hailsham invited him to London for the ceremonial opening of the courts. It was agreed that the Chief Justice and the Lord Chancellor would lead the procession through Westminster, with all the English judges, with the weight of tradition embodied in their splendid judicial robes, following them. Some places had been reserved at the beginning of the church for American visitors. Just beyond the American visitors was Neil Kinnock, for many years the leader of the opposition, the Labour shadow minister. Hailsham was a friend of his and had not seen him in a long time. As the procession began, Hailsham turned to him and said, "Neil!" All the Americans fell on their knees! Warren Burger was enthralled by this. I think no one had the heart to tell our Chief Justice the real reason for this unprecedented gesture of respect.

I have the greatest respect for you, and I want to talk to you about judicial independence. Judicial independence is not in and of itself sufficient to guarantee freedom or the Rule of Law. Our recent experience informs us, however, that it is a necessary condition. I will speak about the reasons for judicial independence, the requisites to it, and the responsibility attendant upon it. To be exhaustive would require more time than we have, so I shall be selective rather than comprehensive. Let me begin with the reasons.

The law is a promise. It is a promise of neutrality. If the promise is broken, if neutrality does not prevail, then the law, as we know it, the law as we respect it, ceases to exist. This first became apparent in our culture around the Tenth or the Eleventh Century in England. The English citizen's life was short, his conditions of living were rude, but he knew he shared with his fellow citizens an inheritance in a law that applied equally, that was neutral. He shared it; hence it was the "common law."

The courts which began to explore, discover, announce, and elaborate this law became important, valuable institutions in the English society. Institutions that are valued by the whole society quickly become the targets for outside interests. The principal outside interest eager to take over the courts for itself was the English monarchy; the struggle between the monarchy and the courts, as you know well, went on for centuries.

It is almost obligatory when talking about judicial independence to refer to the incident between James I and the great Chief Justice, Edward Coke. It may be an account, it may be a self-serving statement dished up by Coke, it may be folklore. It is probably a combination, but the way it has come down to us is through Lord Campbell and Lord Chief Justice Denning. It is instructive for our purposes here that you know the story.

King James had some time on his hands and thought it would be amusing to try some cases. He called the great Chief Justice before him and told him his plan. Coke was reluctant, and the King said, "The law is based on reason. Hath your monarch no reason?" Coke replied, "His majesty is a learned monarch, but not learned in the niceties and details of the laws of the realm." Coke was telling him, "Please, cool it, back off." But the King stood his ground, and Coke stood his. Finally the King, in great distemper, pounded his fist on the table (or whatever Kings pound their fists on when they get mad). The King told Coke, "The King is under no man." Coke responded, as you well know, "The King is under no man, but he is under God and the law."

The struggle continued. Even in Coke's time, it was not successful. I will not go through the Act of Settlement of 1701, or the Tenure of Office Act of 1760. It suffices to say that by the time my legal ancestors, the framers of the Constitution, met in Philadelphia in 1787, judicial independence was so well understood, so well established, so respected, that the framers made it a centerpiece of our separation of powers.

Now, this was quite remarkable. Remember, one of the specific causes for the revolution was that the King's courts had oppressed the Americans. The King used Admiralty courts with no juries to collect taxes. It was remarkable that the framers of the Constitution insisted upon, designed, and enacted a constitutional scheme in which there was strict separation of powers, with an independent judiciary.

What is it that is a restraint on the judges, a "check" in the modern parlance of constitutional law? If the King cannot decide cases, why can the judges do it? Well, the episode between James I and Edward Coke yields some insights. The King does not begin badly when he says, "the King hath reason." Does the law just belong to the judges? It is a rational process; why does it not belong to everybody?

Coke's answers were essentially two. The major text, the major principle, the major premise of his response was that the King, in effect, had a conflict of interest. The State is always concerned with the course, the evolution, and the shape of the law. It cannot be trusted to decide these for itself. Coke, moreover, had a second reason. He said that, in effect, the check on the judge, the restraint on the judge, the discipline on the judge, is the law itself.

Well, you might ask, how is it that the judge can be checked by the law, which he himself, or she herself, elaborates? The reason is that the law transcends the judge. The law consists of ancient, constant, transcendent, existing, real values and principles. That is why Coke told the King that you have to know what the laws are before you can be a judge, or you have no check. Notice that he made the point by the very response he gave when he said, "the King is under no man, but he is under God and the law." He was not offering an original phrase. He was quoting Bracton, who wrote it centuries before. Coke used the debate in order to invoke an accepted, fixed, knowable, constant premise.

So the reason for judicial independence is to preserve neutrality. Judicial independence means the judges must not be influenced by any improper source in making their decisions, especially the state. Judges are controlled, and checked, by the law itself, so they must be faithful to it.

Turning to the requisites of judicial independence, there are, of course, many. It is my respectful submission that one requisite for judicial independence is that judges have the jurisdiction, the right, and the official capacity to decide all matters, susceptible to judicial resolution, that are necessary to ensure liberty and human freedom. If a judiciary does not have jurisdiction to this extent, then the members of the bar and the members of the larger society must continue to press to expand the jurisdiction. This is vital, because if the bar and the society seem indifferent to a too-narrow judicial charter, there is a risk that the judiciary will in fact or perception aid and abet a larger scheme to deprive persons of their liberty.

A vital requisite for judicial independence is fidelity to the language of the law. The language of the law is different from the language of the greater society, different from the language of the political branches. It is not better, not worse, but it is different. The law has its own language, its own grammar, its own logic, its own discipline, its own structure, its own timeline, its own chronology, and its own aesthetic. Judges must be faithful to this language. It is vital for this language that it be preserved and enriched by an independent bar.

If we were to have an Oxford-style debate, and the proposition were, "Resolved, there can be no independent judiciary without an independent bar," I should want to take the affirmative of that proposition. The bar, of course, is necessary to assist the bench in finding, in determining, in elaborating the meaning of the law. The bar is there to insist that it is not just the judges who make the law, but the courts as a whole. It is a collegial process; it is a further check, a further restraint, and a further discipline. And the bar is there, of course, to protest judgments believed to be in error, and, in the rare case, to expose the judge who is unfit for office.

The bar has, it seems to me, a further obligation and vital purpose. The bar is a means to help society in its own language and its own large discourse to absorb the law. Society, as I mentioned, has a language of its own. It is not foreign to the language of the law; the two must meet. The language of society is the language of the traditions, the shared aspirations, and the shared beliefs of the people. The language of the democracy can be rough-and-tumble; the English would say, "hurly-burly." The civic discourse can sometimes be mean spirited, raucous, and vituperative. We are used to that in a democracy. But if the language of the greater society and the discourse of our public become too distant from a vital component of rationality, then it is difficult for the law to make itself felt. A rational law cannot take root in the irrational discourse of the greater society. So the bar can help facilitate, to make a transition between the two languages.

In looking at the civic discourse of my own country, I think sometimes universities, and particularly law schools, have unwittingly given rise to a false impression. They have unwittingly given rise to the idea that our public philosophy is one of skepticism. This is very dangerous, because in philosophy, skepticism is the first cousin to moral relativism; moral relativism is just one step removed from cynicism; and cynicism is corrosive of all human institutions.

I have taught in law school for more than 30 years. I will always attempt, when the student states a case or takes a position, to take the opposite point of view. This is not meant to inculcate skepticism as an end philosophy. It is simply to use skepticism as an analytic tool. There is all the difference between the two. We must train our young lawyers, we must train our young people throughout society, to be critical, to be skeptical, so that when they do find the truth, when they do find an absolute value, they can embrace it, advocate it, defend it, and preserve it. That is why we use the skeptical method.

Some years ago, I was giving some lectures in jurisprudence classes at a university. One of the younger professors who had attended the lectures came up to me afterwards. He said, "I can tell you are a product of the 50's, that you were educated in the 50's." I responded, "Well, there is obvious physical evidence for that proposition, but do you have some philosophic support?" He said, "Oh, yes. You mentioned neutral principles, and no one believes in neutral principles anymore." Well, I was not shocked to find a law school faculty member who embraced the philosophy of skepticism as the end-all of his own cosmology. I was somewhat surprised that he thought this was a universally accepted view.

Of course there are neutral principles. Of course the law has transcendent meaning that exists over time. The whole dynamic of a great constitutional system is that it accommodates a duality. Each generation has the right to help shape its own destiny, its own future. It must do so consistently, however, by protecting those fundamental principles of freedom, which must be the underpinning of a decent, free, and progressive society. This duality cannot be accommodated unless certain truths are recognized as unchanging from one generation to the next. So society as a whole must have a public philosophy which respects rationality in order to preserve and respect the idea of judicial independence.

As I have indicated, there is no evil, there is nothing wrong with a political discourse that is different from that of the law. That is the way it ought to be. There is a phenomenon you see from time to time in which people say, "Oh, the judges should take political considerations into account in making their decisions." This view displays an abysmal misunderstanding of the nature of our legal institutions and the necessity for judicial independence. Of course political consequences follow from judicial decisions. We know that. The point is those judicial decisions are not formulated or announced in a political language. There is a vast difference between the judicial process and the process of the political branches.

As you well know, in my country, as in many constitutional democracies, the judiciary sometimes makes decisions which the legislature afterwards changes by statutory enactments. If a State Supreme Court or our Court announces a common law principle or renders a statutory interpretation, and the legislature later changes the law to reach a different result, that is simply democracy in action. This is majority rule. It is a constitutional right in a democracy to change judicial decisions. When the Congress enacts a statute at variance with one of our decisions, the press occasionally says that the Congress has overruled the court. This is nonsense. Congress has just fixed a statute that was broken, that is all. They did it with a different language, and they ought to do that. As the people come closer and closer to trying to change a decision which approaches a constitutional principle, the language of society, the language of the democratic process ought to approach more closely the rationality of the law itself, because we are dealing with a very fundamental, sacred set of principles. The decisions of an independent judiciary regarding basic constitutional structure or personal liberty must be accorded the greatest respect. This is the mark of a maturing constitutional democracy.

So, these are some of the requisites of judicial independence: a rational discourse in society, a recognition of the difference between the political process and the judiciary, between the political language and the judicial language.

What about the responsibilities attendant upon judicial independence? As you know, we could go on at quite some length about the responsibilities, the duties, and the ethical obligations of the judge. You know these principles as well or better than I do. Let me single out just two. The judge must commit himself, commit herself, upon first taking judicial office, to become learned in the law. When you assume the bench, that is a sign that your commitment to learning has just begun, not that it has ended. This, of course, is necessary if you are to know all the niceties and myriad details of the laws of the realm, so that it is a check on your great and significant and substantial power. This is necessary if the law is to instruct your judgment.

The judge also must continue to learn about something else as well. The judge has to continue to learn about himself, or herself. After more than 20 years on the bench, I am surprised at how often I must go back to the beginning and ask, "Do I have a predisposition, a predilection, a bias, a blindness driving me toward a particular decision?" This process of introspection is not indecision; it is fidelity to the judicial oath.

My dear colleagues in the judiciary, if members of the public or the bar, perhaps even an occasional judge, thinks that judicial power is simply a charade for the exercise of naked authority; if they think that the judicial office is just a power grab in a black robe; if they think it is just a subtle disguise for the exercise of a political function; then they do not believe in judicial independence. If you, however, believe there are neutral principles in the law; if you believe there are transcendent principles illuminating the idea of freedom and human spirituality; if you believe the doctrine and the principles of the law, in the hands of a sensitive, dedicated, and independent judiciary, can contribute to making our society more decent, more compassionate, more tolerant; then you believe in judicial independence. Of course I accept the latter proposition.

I say this not to lecture you, but to indicate my admiration for your unyielding efforts to preserve the Rule of Law here in Hong Kong. You must speak reason to your litigants. You must speak justice to society. You must speak truth to power. If you do, when the history of this time is written, then it will likely say to future generations that, because of what you have done here, freedom prevails in Hong Kong. Freedom, which must survive here and flourish here, is the freedom to which all human kind must always aspire.

Thank you very much for being here this afternoon.

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