2012 Ethel Benjamin address delivered by Justice Kate O’Regan

The more alike judges are, the more likely that they will mistake prejudices for simple truths; the more different they are, the more likely that they will interrogate the correctness of their assumptions.

Justice Kate O’Regan, a foundation member of South Africa’s Constitutional Court, stated this when she delivered the 16th annual New Zealand Law Foundation Ethel Benjamin address in Dunedin on 23 April 2012.

Extensive literature pointed to why it was appropriate for a judiciary to be diverse, Justice O’Regan said. 

For her, two reasons stood out. 

The first was that a diverse bench enhanced the legitimacy of the judiciary in the eyes of the broader community.

It was important in a diverse society that the bench was not seen to be the preserve of a particular group or elite. That would damage the institution. 

A related, and more worrying concern, was that many people still thought that race mattered in judging. Indeed in a survey conducted in South Africa in 2005, 51% of respondents in the seven major cities of South Africa thought that race did have an influence as to how judges decided cases.

In that there lurked a danger that could be described as “the siren of identity determinism”. 

Promoting demographic diversity on the bench may seem to endorse the conclusion that judge’s racial or gender identity determined his or her judgments. 

“If you are a black male judge, you will sympathise with a black male accused/complainant and your judgment will reflect this. The notion extends further: if you are a black male judge, you have an obligation to see the world in a particular way; and if you do not, you are to be criticised for that. 

“Such reasoning must be rejected vigorously,” Justice O’Regan said. 

The task of judging in a democracy demanded more of judges than that they merely gave effect to a world-view inherited from their particular background. 

It demanded a self-conscious appreciation of the impact of their background on their way of thinking and a conscientious attempt at all times to be impartial. 

The obligation of impartiality, she said, led directly to the second important reason for diversity on the bench. 

In his direct and honest statement to the Truth and Reconciliation Commission, Justice O’Regan said, her former colleague Justice Ackermann remarked: “Judges who believe that they are wholly free of prejudice delude themselves. It behoves us all to seek out rigorously, painful as that might be, our own particular prejudices and of whatever nature. We need to keep these constantly in mind and to endeavour actively and persistently to counteract them. Furthermore, we all need to understand the insidious influence of institutional culture and to appreciate the powerful effects of the class, social and political environments in which we live and work, and the potential that his has for making us insensitive to the context and views of others.”

So requiring diversity on a collegial court enabled judges to interrogate their own prejudices or blind-spots. 

“If our backgrounds are the same, it is very comfortable and easy to reinforce the prejudices that such backgrounds foster. 

“When we are different, prejudices masquerading as ‘common sense’ or ‘the ways things are’ are much more likely to be uncovered. 

“If judges are, as the South African oath of office requires, to ‘administer justice to all alike without fear, favour or prejudice’, we need to know where our prejudices lie.” 

One of the real dangers of focusing on demographic diversity as the lodestar of judicial transformation may be that it would undermine the likelihood of judges interrogating their prejudices and background because they felt the fact that they were different was all that was needed. 

“Our legitimacy, we might reason, arises simply from our racial or gender identity. Smugness of this sort should be avoided.” 

Judges, instead, should constantly assert the importance of the second reason for diversity on the bench. 

Its value lay in fostering judicial self-awareness in the promotion of impartial judging. Having colleagues from different backgrounds was a constant reminder not to delude oneself that one is by nature impartial and that one’s understanding of the world was the only one or the obviously correct one. 

“Whatever our background, we all need to acknowledge the open-minded engagement with our own prejudices that diversity affords us, even if it at times it is very hard and the temptation is to retreat into our secure corners with colleagues of our own ilk,” Justice O’Regan said. 

The Ethel Benjamin lecture is hosted by the Otago Women Lawyers’ Society (OWLS).

This article was published in LawTalk 795, 11 May 2012, page 5.