Foreword Lorraine walker

As a lawyer, one is sometimes asked whether one considers that our legal system delivers “justice”. This begs the question, what is justice? over a number of years in the profession, i have come to answer this question along the lines that justice is a fortuitous but uncertain by-product of our legal system.

This superficially cynical response is in fact far from cynical. it is a reflection of my conclusion, based upon experience as a military lawyer, a prosecutor, a solicitor, a barrister and a judicial officer, that the complexities of legal processes are such that there is no replicable formula for “justice”. in the end, law is truly an art, not a science. Attempts to reduce legal principles to mathematical or scientific formulae are, it seems to me, doomed to failure. That is because, unlike science, the variability in legal process is infinite. The rules may remain largely unchanged but the common denominator in all legal processes is people. often people are not entirely honest, often not entirely reliable, often not entirely thorough and never entirely predictable, and that’s just the lawyers. Throw in some litigants and judges and one can readily appreciate that each legal “experiment” will have a somewhat different outcome, despite a significant commonality of factors.

Furthermore, what is perceived as justice by one player in the legal theatre may well be perceived as injustice by another. Justice is unlikely to be an absolute. Here it is to be distinguished from fairness, which is more readily capable of external validation.

it is the essence of justice that it will be applied in accordance with all the strengths and weaknesses of those whose role it is to facilitate it. And because the “experiments” are not replicable, that may cause people to question its facilitation, as indeed they should.

Some of the mystery of the professions, including law, has been exposed in recent decades, with generally higher education and a proliferation of knowledge through the internet.

Certainly there is a trend towards legislative proscription of human relationships which runs the risk, despite the best intentions, of attempting to reduce justice to a formula. There has been significant comment about one such area of concern, that of overly prescriptive sentencing legislation. Largely reflecting an effort to placate public perceptions of undue lenience perceived by some community members as “injustice”, a mandated formulaic approach adopted in some jurisdictions has significantly hampered judicial officers in the art of sentencing effectively. To an extent, sentencing has become an exercise in “ticking the boxes”.

That is not to suggest that public opinion is a matter of no significance to creating and implementing law. Public opinion is the very essence of effective law-making and application. Unless the law is accepted by the majority, it cannot operate to regulate human relationships and a basic pillar of civilised society will fall. So “public opinion” cannot be arrogantly disregarded.

In assessing how justice is to best be achieved in any particular legal process, therefore, community standards and expectations are an essential consideration. But these cannot be achieved by the application of a proscriptive formula. Perfect justice may not be achievable at all. But public scrutiny of the process, so readily achievable now with the available options for communication, provides the potential for more informed assessment and critique of the application of legal process. Initiatives such as “You be the Judge” on the Victorian Sentencing Advisory Council website, leading to informed comment, are positive. Publically broadcast court proceedings are likely to also assist in greater public understanding of at least judicial application of the law. Such dissemination of cases may also produce more informed feedback and, possibly a reduced need for legislative intervention in the judicial system through increased confidence in the judicial system.

The Symposium that is reflected in this book brought together participants from academia and the legal and related professions. Each of the chapters is an insightful consideration of particular aspects of our justice system. Such communal reflection provides another avenue for the necessary ongoing review of our legal system, certainly one I very much appreciated. I trust that the reader is able to absorb, dissect, analyse and continue the “justice” conversation.