Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
26 April 2007

A little less certainty

A reader argues that my position on affirmative action is fundamentally flawed, because my assumption is that there can be no fair and objective criteria of merit that can apply to both “white” and “black”. So one just has to choose which group one should discriminate in favour of.

I do indeed believe that there can be no absolute objective criteria according to which we can decide who are best qualified for a position. For some jobs one can get closer to that (flying a Boeing, say) than in others, but an objective standard does not exist. Pretending that there are such objective criteria merely helps to hide the prejudices of the powerful behind a façade of neutrality.

If we are striving for fairness, it requires, first, that we take into account the larger political, economic and historical context in which we make judgments about what is fair or not. This will inevitably require us to take note of past discrimination and racial injustice and to accept that such injustices must be addressed in some way or another. Second, it requires us to question anew the prevailing “norms and standards” and to ask anew what characteristics will best suit a specific job and who will contribute most to the well-being of an institution. This can only be done well, if we accept that different voices do not necessarily lead to a lowering of standards.

A little less certainty about things and a bit more critical reflection might help us to think about all the invisible criteria which have always helped to advantage the interests of the in-groups and exclude those who did not fit in.

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