“The title of this talk is of course based on the famous statement that “Laws are like sausages — it is best not to see them being made.” The remark is generally attributed to Bismarck, although, according to Wikipedia, the idea was probably first promulgated by John Godfrey , I learn from the same invaluable source, was a man whose greatest claim to fame is that he wrote a poem based on an Indian story about six blind men and an elephant, which is a parable about religious disputes – and I may add, it’s rather an amusing little ode.
Of course, eating sausages is fattening and voluntary, whereas obeying the law is neither. That is just as well because many people who have engaged in sausage-making will not thereafter eat sausages, whereas I have observed no such distaste for obeying the law among law-makers. Of course, when Bismarck, who came from a civilian law country, talked about law-making, he had in mind legislators not judges. And the political give and take can often seem pretty unedifying, involving, as it does, messy compromises, last minute amendments, sops to interest groups, half-baked concessions, crowd-pleasing sound-bites, and grandstanding provisions. Such, of course,
is the price of democracy, and, when we moan about it, we would do well to remember another well-known adage, this one being attributed to University Chronicle.
However, in a common law system law is often made by judges as much as by the legislature, and it is on judge-made law that I want to concentrate today, not least because I know more about judge-made law than I do about legislation. When it comes to judgments, the sausage analogy can be taken a little further. Sausages are contained in a transparent skin, or casing, which means that the contents of a well-made sausage are neatly packaged and are clearly visible. Like the casing of a sausage, the style and structure of any judgment should ensure that the ultimate product appears elegant and that its contents are clear. And a traditional sausage contains a well-judged mixture of meat, starch and flavouring, and the best sausages have more meat than starch and they have good flavouring – not a bad description of the best judgments. Which brings me to the important quality of transparency.”
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