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From the President

Judging the law

By Howard B. Miller
President, State Bar of California

Howard Miller“The life of the law has not been logic, it has been experience,” wrote Oliver Wendell Holmes, whose own experience as an infantry captain at the battle of Antietam — still the bloodiest day in American military history, even after Normandy and Iwo Jima — framed his tragic view of life.

It is unlikely even Holmes could have imagined the experience that shaped the life of Albie Sachs, who recently visited us. His formal resume tells us he was one of the drafters of the modern constitution of South Africa and is a justice on its Supreme Court. But at the deepest level, in an age that has forced those of us in the law to focus on court budgets, management and efficiency, the life of Albie Sachs teaches us what the law, and judging, are all about.

At the beginning of his new book, “The Strange Alchemy of Life and Law,” Sachs writes:

“Life prepared me in the most bizarre way for becoming a judge. If judicial office had been my goal I was doing everything right … eight years of study and three degrees including a doctorate in law, a decade of busy practice at the Cape Town bar, and later earnestly teaching law in three continents and publishing several books, some scholarly, others autobiographical. Yet as far as the actual impact of the law on my life was concerned, everything was wrong: as a student my home was raided before dawn by police …; while at the bar I was twice placed in solitary confinement by the security police, first for 168 days and later for three months, during which I suffered torture by sleep deprivation; when I completed my doctorate I was living as a stateless person in exile in England; and some years later while doing legal research in Mozambique I was blown up by a bomb placed in my car by my country’s security agents, losing an arm and the sight of an eye.”

These are not the kind of experiences most lawyers and judges have. And none of us can truly know how we would have reacted had we lived that life: In the most profound, unjust and painful way, having the law as our enemy, as it was for was for Albie Sachs.

Sachs then, in effect, became the law. He was a major part of drafting a new constitution for his country. President Mandela appointed him to the Supreme Court of South Africa. And he had to decide in his opinions what the law would be.

His new book is for the most part a compilation of some of his leading opinions. They tell us not only about the man, but about the highest standards of judging, justice and the law. There is nothing arbitrary in them. No vengeance. The technicalities are all there, but also a profound understanding that justice must be human, measured by the realities of life and its actual effect on real people, those before the court and those who will be impacted by the decision. He understands. In one of his most remarkable opinions, which we would characterize simply as involving an intellectual property issue of parody and copyright, Sachs writes about the importance of laughter and humor to a sane society. In a housing decision we would characterize as a real property case he ties the language of the South African constitution to the critical importance of housing law and policy to a just and stable society.

He brings both his life experience and his awareness of the impact of his life experience to his knowledge of the law and its own culture and requirements. He sets a standard for the methods and techniques of judging from which we all can learn.

One of the great appellate justices in the world, he was never a trial judge. He makes us consider our own professionalization of the judiciary and the importance of bringing life experience to all levels of the bench. He leads us to reflect that all our current justices of the United State Supreme Court are basically professional judges — everyone served on a United States Court of Appeals. In 1954, on the Court that decided Brown v. Board of Education, not a single justice had previously been on the appeals court. They had all lived a full life in the law and elsewhere — not with the challenges or intensity of Albie Sachs, but they had been governors, senators, cabinet members, prosecutors, defenders. None of them lived a charmed life. They had all suffered and understood failure. They all brought a wide range of life experiences with people to their judging. It’s worth thinking about.