The Legislative Gazette, April 5, 2004
by Jessica Bloustein – Gazette Staff Writer
Aristotle once said, “the law is reason free from passion.” During a lecture at Albany Law School last week, Stewart Hancock Jr., however, presented an argument that makes Aristotle’s claim seem imprecise.
Hancock argued that fairness, ethics and sense of justice, three attributes scholars of the court system agree are the hallmark of an ideal judge’s approach to law, in fact comprise a “human dimension of the law” inherent to the decision-making that reflects a “fair and efficient” justice system.
Aristotle’s concept of law, free from passion, precludes this human dimension. In the absence of this element, according to Hancock, judges become “cold, analytical legal automatons,” functioning only to make decisions based on precedents set forth in previous rulings.
But a constantly evolving society is a reality here in New York, and demands a simultaneous evolution of common law that cannot be accomplished without its human dimension. Courts are facing issues to which prior or antiquated common law precedents cannot relate to guide a fair and just ruling. Hancock cited Sept. 11, same sex marriage, stem cell research and several other never-before experienced, controversial, emotionally laden issues as examples. Any judgment on such cases requires new interpretation which, according to Hancock, is “bounded only by human imagination.”
“Responding to the dictates of common sense, fairness and the human dimension often requires a common law court to be pragmatic and flexible,” he said. “On occasion – when no remedy can be found in precedent, logic or analogy – finding a way to answer the demands of justice and fairness requires imagination, creativeness and even inventiveness.”
Hancock defined the adaptation of common law to modernize one’s approach to decision making as legal realism. And part of that realism is the undeniable presence of a human dimension to law.
“Common law will continue to evolve, change and adapt to meet the challenge of changing times,” he said.
Hancock pointed out that judges must weigh the consequences of their decision before finalizing it, asking fundamental questions: “Will the rule one is proposing work? Will it make sense? How will it fit into the existing progression of law? Will it operate fairly?”
Answering such questions requires fairness, ethics and a sense of justice, all human characteristics tied to Aristotle’s concept of passion.
“The human dimension has compelled common law judges to look for solutions. They ask not whether, but how,” Hancock said.
The Fund for Modern Courts and Albany Law School invited Hancock to give the third annual Judge Hugh R. Jones Memorial Lecture before members of the New York State Court System.
The Fund for Modern Courts is a private, non-profit organization seeking to improve the administration of justice in New York by ensuring efficiency, fairness and accessibility of courts for all of its citizens. The organization sponsors programs to foster these attributes.
The lecture honors Judge Hugh Jones, a champion of efforts to ensure fairness and efficiency in New York’s courts. Jones held many prominent positions in and around the court system, including an associate judgeship on the Court of Appeals, presidency of the New York State Bar Association, chairman of the Commission on Judicial Nomination and director of the Committee for Modern Courts.
A retired associate judge of the New York State Court of Appeals and a former State Supreme Court Trial Justice, Hancock serves as counsel to Hancock and Estabrook, LLP. He also is a visiting professor and Jurist in Residence at Syracuse University School of Law. Chief Justice Judith S. Kaye introduced Hancock before his lecture as a scholar of the common law process.