Judgement day
Cur. ad. vult, or reserving one’s judgement
I’ve been thinking of judgement, because Rosh Hashanah (the Jewish New Year) and Yom Kippur (the Day of Atonement) are approaching. Jews and Samaritans believe that on Rosh Hashanah, G-d judges people on the basis of their actions over the last year. But G-d does not ‘seal’ the judgement until Yom Kippur, so there is time to ask for repentance, to reflect upon one’s actions, and to seek to apologise to those you have wronged.
I do think it’s important to note that in this tradition, even G-d pauses, to consider judgement.
Curia adversari vult: ‘the court wishes to be advised’. These are the words written at the bottom of reported judgments at common law—usually in the shortened form of cur. ad. vult.—to indicate that the court took time to consider its judgment before handing it down. Hence, we have the same tradition in the common law, where judges reserve judgement, to think about their decisions and their reasoning.
Frequently on social media, I see that a battle is raging. Social media users are expressing support for a particular embattled person, cause or entity, and signal it accordingly. Usually, they’re also signalling their membership of a particular political tribe. By the time I have made up my mind, the bandwagon has passed, several weeks or months ago. And my judgement is often, “On the one hand this, on the other hand that, and so on balance…” which makes anyone who’s partisan annoyed.
I stand up for people. Anyone who knows me will know that I’m there for them, particularly if I am fully informed. But I tend to act with caution. Sometimes the way in which I stand up for someone is not to jump into social media battles, but to contact someone in authority, or to offer moral or legal support privately, or to suggest broader policy reforms.
When I call out conduct, it tends to be in long form, in an article or post, and I try to do it in a measured fashion. Often, if I do stand up, it is after months of thought—if not years—on a particular issue.
I’m not perfect. I’ve lost my cool on social media before. I regret it. Twitter/X was not the appropriate venue to enter into a piqued rant. You live and you learn.
My caution about pre-judging matters goes back to my days as a trial judge’s associate1 at the Supreme Court of Victoria, and then my time as a litigator. Seeing a full matter unfold—as opposed to reading a media story about it—gives you an entirely different perspective on it. You see the complexity of the situation, the nuance, and realise that the issues are not clear-cut. Sometimes the media reports bore no resemblance to the full picture I’d seen.
I often need more information before I can make up my mind. My world is shades of grey. This doesn’t seem to sit well with the current zeitgeist, where everyone comes to judgement immediately, and knows what the right answer is.
Judging a person fairly is hard. To move to a different Abrahamic religion, I can’t help thinking of the passage in the Book of Matthew in the New Testament:
Judge not, that ye be not judged.
For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.2
You have to think: if you were judged according to the standards you impose on others, how would you fare, when the public spotlight turns on you?
I ran this draft post past Rabbi Alex at
, and he’s drawn my attention to a passage in the Mishnah where Rabbi Hillel also makes some important points about judging one’s fellows.Parenthetically, I like Rabbi Hillel the Elder: he was a peaceful man whose most well-known statement is probably “What is hateful to you, do not do to your fellow: this is the whole Torah; the rest is the explanation; go and learn,”3 sometimes known as the Silver Rule. Christians will recognise the similarity to the Golden Rule—“Do unto others as you would have them do unto you”—but also the fact that it’s a reflection, focusing more on omissions: avoiding doing things to others that you don’t like.
There are interesting parallels with the New Testament in Hillel’s statements about judging one’s fellows, too, in Pirkei Avot 2:4:
Hillel said: do not separate yourself from the community, Do not trust in yourself until the day of your death, Do not judge your fellow man until you have reached his place. Do not say something that cannot be understood [trusting] that in the end it will be understood. Say not: ‘when I shall have leisure I shall study;’ perhaps you will not have leisure.
If you’re not used to the Mishnah, this might be hard to understand.4 I’ve looked up some commentary on this passage (you can follow the link above, although I am presuming that only Rabbi Alex and I are that interested, which may be one of the many reasons why we are friends).
‘Do not separate yourself from the community’ means that you should support your community through both the good and the bad. In a very Australian way, this reminds me a little of supporting my football club (go Tiges!). I can’t stop supporting my football team when it’s going through a bad patch. Also, it’s really important to stick together, through hard times and good times, and it makes us stronger.
‘Do not trust in yourself until the day of your death’ has been interpreted, among other things, as meaning that you can’t be sure of your own righteousness until the day you die.
‘Do not judge your fellow man until you have reached his place’ means that you can’t know what you might do if you were in another’s shoes.
‘Do not say something that cannot be understood [trusting] that in the end it will be understood’ is simply about the virtue of clarity in communication, and the ways in which we sometimes misjudge each other because we misunderstand each other.
‘Say not: ‘when I shall have leisure I shall study;’ perhaps you will not have leisure’ is interpreted simply as an injunction to study Torah. But I also wondered whether, in this context, it could mean that, rather than jumping to judgement because you are busy, you have to look carefully and study the facts ?
It’s so easy to judge another person from a distance, in the abstract, with incomplete information.
Research on sentencing indicates that members of the public are vastly more punitive when they read an abstract description of a crime, or a newspaper article. However, once members of the public read the sentencing reports or the court transcript—in other words, they’re given more information—they become vastly less punitive.5 Seeing the nuance and context which wasn’t present in the abstract description or newspaper report makes an immense difference. We may complain about the lengthy nature of court proceedings, but there are good reasons to look carefully at matters tried before our courts before we judge.
This Yom Kippur, I hope that I am judged fairly, with nuance, mercy and due consideration, and that I judge others justly, with nuance, mercy and due consideration.
To those I have wronged, I apologise.6 I never mean to be unfair, but I’m human. As Alexander Pope said, “To err is human; to forgive, divine.” 7 The unforgiving nature of our current world dismays me.
Judge’s clerk, for US readers.
Matthew, 7:1-2.
Shabbat 31a.
The Mishnah is an oral version of the Torah that was memorised for thousands of years, with commentary added incrementally, and then later written down (many centuries later). And then there’s the Gemara, the commentary on the commentary. What a lovely palimpsest.
J Roberts and A Doob, ‘Sentencing and Public Opinion: Taking False Shadows for True Substances’ (1989) 27(3) Osgoode Hall Law Journal 491; J Roberts and A Doob (1990). ‘News Media Influences on Public Views of Sentencing’ (1990) 14(5) Law and Human Behavior 451. See Dr Karen Gelb, Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing (Sentencing Advisory Council, July 2006).
There will be another post on guilt coming. Half-written…
Alexander Pope, An Essay on Criticism (1711).
On the question of rushing to judgement on political questions, one thing we often see is a particular group of people who are being oppressed or done an injustice in a particular situation, who then become classified as an "oppressed group" in general by people with a certain way of thinking about political questions, and the people with the certain way of thinking then see every other situation in which that group (or members thereof) are involved through the prism of them being an "oppressed group". This then means that in specific situations where members of the oppressed group are in a complex situation of at least partly lateral conflict with another group of people, or may even themselves be the oppressing group, these situations are reinterpreted in a Procrustean way to fit the narrative of "Group X is the Oppressed Group and therefore must always be supported.
I was in among a crowd of one-eyed Brisbane Lions supporters at the AFL final at The Gabba on Saturday night, and they would boo hysterically whenever the umpires made a decision that didn't favour Brisbane, no matter what the merits of the incident on which the umpires were adjudicating. I can forgive that behaviour by a football crowd - not so much when it's by participants in political debates.
I enjoyed reading that!
In relation to the third last paragraph, Australian jurisdictions require sentencing judges to consider, among many other factors, "community expectations" when determining sentences. This prompts me to wonder, and ask, whether "community expectations" in this context means the actual expectations of the actual community, most of whose members' knowledge of the case is what they have been told by the media, or does it mean what the sentencing judge thinks the community would expect if members of the community were as fully informed about the case as the judge?