Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions

(2016) 41 Australian Bar Review (Forthcoming)

26 Pages Posted: 11 Mar 2016

See all articles by Jack Oakley

Jack Oakley

Clifford Chance

Brian Opeskin

University of Technology Sydney

Date Written: March 9, 2016

Abstract

Australians are often said to have a sense of humour that is dry, irreverent and ironic. In such a culture, one might expect those who exercise judicial power to feel at liberty to unleash their wit. Yet most judicial officers in Australia today exercise caution and restraint in using humour in courtrooms and judgments. This stringent attitude is reflected in the paucity of Australian examples of judicial humour, especially in written decisions. However, this conventional view deserves to be challenged. This article assesses whether there is an appropriate role for humour in the exercise of judicial functions in hearing and determining cases.

This article considers the primary stakeholders in legal proceedings — litigants, judges, advocates and society-at-large — and examines how their different interests are affected by the use of judicial humour. The article then discusses four arguments in support of judicial humour, namely, that humour is a quintessentially human quality we should expect judges to display; promotes open justice by demystifying the language and rituals of the courtroom; oils the wheels of justice by easing courtroom tensions and aiding digestion of complex written reasons; and serves as a social corrective by allowing judges to gently admonish.

Balanced against these considerations is the concern that excessive use of humour may conflict with a judge’s ethical duty to acquit his or her role with independence, integrity, propriety and diligence. In extreme cases, a judge’s use of humour might give rise to an apprehension of bias in discharging judicial functions. The use of humour also has to avoid claims of judicial misconduct. While it is fanciful to suggest that even an egregious use of humour could amount to misconduct that warrants removal from office, it could form the basis of a complaint against a judicial officer, and has done so on occasion.

Despite these legitimate constraints on judicial behaviour, the article concludes that humour has a place in the curial process. From time to time the use of humour by judges may be called in question, but judges are chosen for their capacity to judge. Extreme cases aside, we should let humour lie within the sound discretion of the court.

Keywords: humour, humor, judges, judicial ethics, judicial misconduct, judicial decisions, judicial opinions, courtroom, wit, sarcasm

Suggested Citation

Oakley, Jack and Opeskin, Brian, Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions (March 9, 2016). (2016) 41 Australian Bar Review (Forthcoming), Available at SSRN: https://ssrn.com/abstract=2745611

Jack Oakley

Clifford Chance

Sydney Office

Brian Opeskin (Contact Author)

University of Technology Sydney ( email )

Faculty of Law
University of Technology Sydney
Sydney, New South Wales 2007
Australia
+61-2-95149670 (Phone)

HOME PAGE: http://www.uts.edu.au/staff/brian.opeskin

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
175
Abstract Views
819
rank
189,141
PlumX Metrics