The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World

By Barend Van Niekerk | Go to book overview

INTRODUCTION

Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

Lord Atkin, The Ambard case 1

This is a work about one of humanity's most cherished freedoms -- freedom of expression. However, only one particular aspect, or bundle of aspects, concerned with that freedom will be discussed here: the freedom of expression in relation to the administration of justice. Moreover, we shall be concerned mainly with the most common form of humanity's mode of expression: speech. An attempt will be made to provide a comparative bird's-eye view of how freedom of speech concerning the administration of justice -- legal free speech for short -- has fared or is presently faring in the world, and particularly in the so-called Western world. The world -- or for that matter, just the Western world -- has become, as far as the use of the comparative legal method is concerned, very complex indeed. Therefore, in the nature of things, nothing more than a limited view of the major legal systems will be given. This limitation is dictated by the availability of sources and by my personal inclinations, not to speak of limitations dictated by the need to keep the work within reasonable and readable bounds.

This work is concerned with one of humanity's great liberties and it is written by a fervent believer in that particular liberty. This is as much an admission as it is the framework within which the entire content of this work must be seen. To this writer, at least, it is one of the minor marvels of jurisprudence to see how in many instances and in many legal systems -- by no means limited to the most repressive countries -- this important part of this important right has been suppressed, circumvented, or simply left unused. As I hope to show, no perceptible social advantages seem to have come from this situation.

In yet another way have I become deeply committed to this particular aspect of freedom of speech, a commitment that will not fail to become abundantly apparent to the reader. In no fewer than three cases in under four years, two of which were followed by appeals to the highest court in the land, I had to face trial in my country, South Africa, for pronouncements on matters purely related to the administration of justice. It is quite possible that my critics, particularly those in South Africa who have become so psychologically inured to their own lack of freedom, may see in these personal curial experiences a built-in absence of objectivity and detachment. Inasmuch as we are all the product of our experiences, I cannot of course hope to escape such a charge. The experience of standing trial on those three occasions, under the particular circumstances of each case, obviously could not fail to imprint on my mind more than any abstract argument the pivotal importance of that crucial part of freedom of speech, an importance which, I think, will speak for itself when those cases -- milestones in

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