The Beauty of Grey

12 06 2013

Category; Law, Politics



It must be tough being a US Supreme Court Justice, knowing that your application of overriding principle leads to flagrant, obvious and pitiless injustice, but that is the decision they faced recently in the case of Maryland v Kingclick here.

A rapist, caught and charged years after the offence, given away by a DNA sample collected in an entirely unrelated matter.

Was that an unreasonable search (click here), did the constitution allow such a thing or ought the conviction to be struck down, and a man who everyone knows is a rapist be set free on a point of principle?

That’s the problem of rigid application of principle. The Constitution must be upheld, but what kind of a society frees a proven rapist? It’s an absurdity.

In this case the absurd was not fully tested; the Justices voted 5-4 to allow the DNA evidence. But four of them voted in such a way that would have freed the rapist.

It’s not fair on them, it must weigh heavy on their decision, perhaps even nudge them into voting against what they believe to be the right principle given the very human possibility of a rapist being set free.

There was an English Judge, Lord Denning – click here – who operated on that legal spectrum, nudging his judgments away from legal principles to produce the ‘right’ result for that case.

I was taught by a man who socialised with him. He reported Lord Denning as asking him whether he had understood a particular judgment relating to the law of Trusts. My lecturer confessed that he had not, and Denning was pleased – that was the idea. He’d fudged the ruling to allow victory for the party he most sympathised with.

In such a way Denning created bad law; subverting the certainty necessary to a legal system.

However a system that has the potential to deny a rape victim the only rational outcome on a point of textual analysis must, surely, conflict with any reasonable understanding of human justice.



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: