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Inarticulate Major Premise

Judicial Bias

The Basis of Judicial Decisions

In some judicial rulings, the magistrate explicitly states the policies and values he or she relied upon to make the decision. But, as court critics point out, there are times when the evidence and the ruling are in stark conflict. In such cases, a value judgment or policy was apparently a factor in the decision, but nowhere is it stated. This constitutes what Oliver Wendell Holmes, Jr. called the Inarticulate Major Premise.

The concept is stoutly disclaimed by some magistrates, openly professed by others, and silently acknowledged by still others. A magistrate is supposed to decide a case on the facts, and write an opinion afterward presenting the rationale for his decision. The true basis of the decision, however, is often an Inarticulate Major Premise outside the law.

The Inarticulate Major Premise in the Modern World

Oliver Wendell Holmes, Jr. had the backbone to discuss the Inarticulate Major Premise openly in his book The Common Law, published in 1881. At that time Holmes was a professor at Harvard Law School. Later, Holmes became a Massachusetts state judge. In 1902 President Roosevelt named Holmes to the United States Supreme Court. Holmes' nomination has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but based strictly on the nominee's contribution to law.

How has the Inarticulate Major Premise evolved as centuries passed? We move from influences within society to influences within the judiciary.

Holmes Time (1800s)  /  Influences Within Society

During his career, Holmes probed the human yearnings of the men who donned judicial robes. His candor was daring, yet realize this: The bias Holmes referred to was political and cultural bias only: Such influences within society were the typical stimulus whenever a judicial ruling was skewed or unfair two centuries ago. The Inarticulate Major Premise was a clear problem in Holmes' time, but when bias occurred, its source could be attributed to political or cultural beliefs held too dearly or too strongly by a magistrate.

Judges have always considered themselves to be a caste, a brotherhood. In each generation, they bring a set of assumptions and cultural norms to bear upon the cases they consider. The conflict between political ministers and the judiciary is one of the clearest continuities between any new government and its predecessor.
Reference: The Telegraph UK

21st Century  /  Influences Within the Judiciary

Today, judicial bias springs from more diverse sources. We encounter societal influences as of old, but we also encounter influences stemming from within the judiciary. No longer is bias limited to political partisanship or cultural intolerance; bias has expanded to include magistrates who with little qualm use the law for an improper purpose.

One open example is using the power of the bench to pursue individual retribution, or to enhance a magistrates' own personal wealth and position. There is also the more insidious long game of stacking the judicial bench: An organizations such as the CMPACanadian Medical Protective Association campaigns to elevate a selection of its in-house lawyers to the bench, where once ensconced they preside over pertinent cases (such as medical malpractice cases).

For many years, the power and pretensions of judges have grown. Judicial review becomes dramatically more important. Reference: The Telegraph UK

How is judicial review accomplished? Surely not by self-regulation of the law profession. Canada has extensive experience demonstrating the dismal failure of self-regulation in other professions such as medicine. Visit the pages on this site which set out with forensic proof the malfeasance of rheumatologist Dr. Kenneth Blocka, the rampant financial fraud of Dr. Arun Nayar, or the scorched-earth tactics of the CMPA (Canadian Medical Protective Association).

The Life of the Law is Not Logic, but Experience

1600s: The seventeenth-century English jurist Sir Edward Coke left behind a famous dictum:

Reason is the life of the law, nay the common law is nothing else but reason.

1881: American jurist Oliver Wendell Holmes, Jr. countered with a more realistic view in his book The Common Law (1881). Written as a series of lectures, the book covers the common law of torts, property, contracts, and crime in the United States. Holmes' view:

The Common Law 1881
Common Law 1881

The life of the law has not been logic: it has been experience.

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The felt necessities of the time, the prevalent theories moral and political, intuitions of public policy whether openly avowed or unconscious – even the prejudices which judges share with their fellow-men – have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

1937: The University of London Law School founded The Modern Law Review in 1937 to discuss how the law functions in society. The industrial revolution bred new workplace legislation; the printing press ushered in newspapers and a need for libel law. The Inarticulate Major Premise was a force among legislators privileged to be on the spot making new law:

Modern Law Review 1937
Law Review 1937

The Inarticulate Major Premise is dominant not only in the judge, but in the legislator and the administrator.

All of them are often faced with problems and decisions which demand a clear conception of the social basis of the law. It is important to be acquainted with the social conditions and ideas which produce the law, whether in statutes or cases.

Law undergoes continual reform. All such projects demand a searching analysis of the origin of the statutes.

2014: The Macdonald-Laurier Institute of Canada published an article Judge-Made Law in 2014 which extends the range of the Inarticulate Major Premise. All human beings approach issues and decisions from their own personal outlook (intellectual, philosophical and social views), joined with the person's concrete backstory (education and experience).

Judge-Made Law
Judge-Made Law

Undoubtedly the background of the individual will invariably, if unconsciously, play a significant part when a judge or jurist is engaged in what appears to be reasoning.

Many lawyers believe that a judge is perfectly capable of first deciding what the proper outcome of a case should be, and only then developing the rationale to support that result.

That, after all, is how lawyers are trained to present briefs and arguments in our adversarial system – make the best case for your client given what you have to work with.

Lochner v. New York (1905) U.S. Supreme Court

Deliberate Challenge to the Labor Laws

In Utica city, Mr. Lochner owned a bakery and confectionary shop. There, he required and permitted an employee to work more than sixty hours in one week, in violation of Section 110 of the Laws of 1897, known as the labor law of the State of New York.

Lochner was convicted. He did it again. In court Lochner argued that, first, what he did was not a crime. Second, Section 110 was an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, thus was in conflict with, and void under, the Federal Constitution.

The labor dispute subsided long ago. But the case lives on in American memory – and increasingly in the jurisprudence of all Western countries – because of the dissenting opinion written by Oliver Wendell Holmes, Jr.

Origin of the Concept Inarticulate Major Premise

In his dissenting opinion, Holmes publicly and candidly introduced the concept of the Inarticulate Major Premise. In his words:

This case is decided upon an economic theory which a large part of the country does not entertain. It is settled by various decisions of this court that State constitutions and State laws may regulate life in many ways which we, as legislators, might think as injudicious, or as tyrannical, as (Section 110), and which equally interfere with the liberty to contract.

Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes, so long as he does not interfere with the liberty of others to do the same, is interfered with by school laws, by the Post Office, by every institution which (taxes). We upheld the vaccination law, the prohibition of selling stocks on margins, the eight hour law for miners.

Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution does not embody a particular economic theory, whether of paternalism … or of laissez faire. A Constitution is made for people of fundamentally differing views, and the accident of (Judges) finding certain opinions natural and familiar – or novel or even shocking – ought not to conclude our judgment upon the question whether statutes conflict with the Constitution.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.

Regina v. Wilson and Whaley 1982 ONSC 1879

Facts of the Case

The accused Whaley and his lawyer Greenspon conversed at a table in a foyer outside a detention cell. Constable Sloan took up a security post near a door 20 feet away. They could see each other. Sloan heard some but not all of the murmured conversation; he heard the word Disclosure and some facts previously disclosed by the Crown.

Sloan made no active effort to listen to the conversation until he overheard a particular utterance, apparently inculpatory, made by Whaley to Greenspon. Sloan then strained to listen and remember, and later made notes. The Prosecutor called Sloan as a witness at trial, to relate his recollection of the overheard conversation. The defence protested.

Held: the evidence was inadmissible. The conversation occurred between a solicitor and client; there was no waiver of attorney-client privilege, intentional or implicit, and the pair had a right to consult in private. But the reasons for exclusion went far beyond this issue, to encompass the Inarticulate Major Premise.

Discretion of Court to Exclude Verbal Evidence

If a confession is made to a person in authority, the court will examine whether or not the confession was voluntary. The rule applies only when the person who received the confession, or who overheard a conversation, is clearly marked as someone in authority. In Wilson and Whaley, the auditor Sloan was a police constable in uniform.

The rule does not apply when an utterance is made to someone not perceived as being in authority. In Rothman v. The Queen (1981) SCC, the Judge accepted into evidence the inculpatory statements made by an accused who struck up a conversation in a detention cell with an undercover officer posing as another arrested citizen.

Confessions:  Role of the Inarticulate Major Premise

Chief Justice Freedman wrote in his oft-cited article Admissions and Confessions (1972): It is justice then that we seek, and within its broad framework we may find the true reasons for the rule excluding induced confessions.

Undoubtedly, the main reason for excluding them is the danger that they may be untrue. But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others – the last perhaps being an instance of an Inarticulate Major Premise playing its role in decision-making.

These reasons, all of them, are rooted in history. They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process.

Earlier a foundation was laid in R. v. McCorkell (1962) ONSC which held: Our criminal justice system vests the Court with two responsibilities: The protection of the innocent against conviction; and the protection of the system itself by ensuring that repression of crime through conviction of the guilty is done in a way which reflects our fundamental values as a society. This has three corollaries; the third is relevant here:

Corollary 3: Exclusion of statements which, because of conduct on the part of authorities, would be more damaging to the system's reputation if admitted, than the damage arising from a guilty party's acquittal.

Auditor Fills in Gaps Based on Own Expectations

Wilson and Whaley said: In a criminal case, counsel and client often have little choice but to consult in conditions of inadequate privacy (such as in a detention cell) and, more to the point, in conditions over which they have no control. They should not need to concern themselves their conversation may be introduced as evidence.

This case asserted that an apparently inculpatory utterance may not actually be so:

  • The defence suggested: The content of the utterance from the accused could have come initially from information provided in the Disclosure documents, as recounted by his solicitor, or else have been deduced by the accused. The utterance might not reflect the direct knowledge or state of mind of the accused.
  • Constable Sloan testified: I could not hear all of the conversation and had to actively concentrate my attention to garner its meaning. Sloan stood 20 feet away from a conversation where voices were lowered for privacy. An utterance only partially overheard is subject to being taken out of context, with the gaps filled in via psychological projection.

R. v. Hynes 2001 SCC 82

Confirmation of Inarticulate Major Premise

Canadian courts continue to cite Chief Justice Freedman and his article Admissions and Confessions. The present case, Hynes, discusses induced confessions, and the rationale for their exclusion in common law:

It is justice we seek, and within its broad framework we may find the true reasons for the rule excluding induced confessions. Undoubtedly, the main reason for excluding them is the danger they may be untrue.

But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others – the last perhaps being an instance of an Inarticulate Major Premise playing its role in decision-making.

These reasons, all of them, are rooted in history. They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process.

Exclusionary Rule:  Common Law and Charter

Evidence is excluded under the common law when the judicial process would otherwise suffer. This remedial component in common law is equally as strong as the remedial component in s. 24(2) of the Canadian Charter of Rights and Freedoms.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
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Triple Self-Portrait / Norman Rockwell 1960

Triple Self-Portrait / Rockwell

Oliver Wendell Holmes, Jr. gave to the Inarticulate Major Premise this fundamental meaning:

All judicial decisions to a greater or lesser extent are self-portraits of the magistrate.

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