THE COURT IS NOT HIS

The Perils of Personalising Judicial Power

“The Judge is Lord in his Court.”

How often have we heard this expression?

And how often have we heard Judges, Lawyers and others refer to a courtroom as “my Court”?

Perhaps these expressions have become so familiar that we rarely stop to interrogate them.

But should we?

Not because a Judge who says “my Court” necessarily intends to claim ownership of the courthouse. In ordinary judicial usage, the expression may simply mean the Court over which I presently preside.

Yet there is a deeper question worth asking:

What does our language reveal about how we understand judicial power?

Because language matters. And when language is repeatedly used around the exercise of public power, it is worth examining what that language communicates about the nature and source of that power.

So, is it really “his” Court?

THE JUDGE IS NOT THE COURT

Let us begin with a fundamental distinction.

A Judge is a person. A Court is an institution.

A Judge occupies judicial office.

A Court derives its existence, jurisdiction and authority from law.

A Judge may preside over a Court, but he does not create the Court merely by taking his seat upon the Bench.

He does not create its jurisdiction.

He does not personally enact the laws under which it operates.

He does not confer upon himself the authority to adjudicate.

He receives and exercises that authority by virtue of the legal order.

This distinction is not merely philosophical.

In constitutional systems, judicial power is ordinarily vested in courts established or recognised by law, rather than in the individual personalities of the Judges who happen to preside over them.

The implication is profound:

The authority belongs to the institution; the individual is entrusted with its exercise.

SO, WHY “MY COURT”?

Again, I am not suggesting that a Judge who says “my Court” is claiming proprietary title to the courthouse.

That would be an unnecessarily literal interpretation of a phrase commonly used as shorthand for the Court over which I preside.

The more interesting question is therefore not:

“Is the expression legally wrong?”

It is:

“Is it institutionally desirable?”

There is a difference.

A public officer may use language that is perfectly understandable, yet the institutional implications of that language may still deserve examination.

Judicial culture matters because the judiciary must continually distinguish the authority of the office from the personality of the office-holder.

The Court should be bigger than the individual who temporarily occupies the Bench.

A COURT IS NOT A PERSONAL KINGDOM

This brings us to the familiar expression:

“A Judge is Lord in his Court.”

If by this we mean that a Judge possesses lawful authority to control proceedings, maintain order, determine questions properly before the Court and exercise the jurisdiction conferred upon the Court, then the expression may simply be an emphatic way of describing judicial authority.

But if it is understood to suggest that the courtroom is the Judge's personal domain, then we have a conceptual problem.

A Judge is not a monarch.

The courtroom is not a kingdom.

Judicial power is not personal sovereignty.

And the authority of the Bench does not originate from the personality of the person sitting upon it.

The Judge is powerful because the law gives the office power.

Not because the individual is inherently powerful.

THE JUDGE CAN LEAVE. THE COURT REMAINS.

Consider a simple thought experiment.

Judge A presides over a particular Court for ten years.

He retires.

Judge B takes his place.

Does the Court cease to exist?

No.

Does its jurisdiction disappear?

No.

Does the legal authority of the Court suddenly become the personal authority of Judge B?

Obviously not.

The institution continues.

Only the occupant of the office changes.

And when Judge B eventually leaves, Judge C may take the same seat.

The Court still remains.

That tells us something fundamental:

The Judge is temporary. The institution is enduring.

Whatever authority the Judge exercises therefore cannot logically be reduced to his personal possession.

He is a custodian of an authority that existed before him and, ordinarily, will continue after him.

“THIS COURT” MAY SAY MORE THAN “MY COURT”

This is why the expression:

“This Court…”

is particularly interesting.

It is not merely a grammatical alternative.

It can be an institutional reminder.

“This Court” places emphasis on the institution.

“My Court” places emphasis, however subtly, on the individual who occupies the institution.

Consider the difference:

“My Court will not tolerate this conduct.”

and:

“This Court will not tolerate this conduct.”

Both may communicate the same immediate judicial command.

But the second formulation carries a different institutional character.

It reminds everyone—including the Judge—that the authority being exercised is not personal.

It belongs to the Court as a legal institution.

The Judge is exercising that authority by virtue of the office he occupies.

Perhaps, therefore, “This Court” is more than a stylistic preference.

Perhaps it is a subtle reminder of the constitutional character of judicial power.

THE LAW IS GREATER THAN THE PERSON ON THE BENCH

Consider another thought experiment.

Imagine a fundamental disruption of the constitutional order.

Suppose a military junta seizes political power and suspends or fundamentally alters the existing constitutional framework.

What happens to the judicial authority previously exercised under that constitutional order?

Does the individual Judge suddenly retain an independent, personal reservoir of sovereign authority?

No.

Whatever happens thereafter would depend upon the new legal and constitutional circumstances.

But the thought experiment exposes something important:

Judicial authority does not originate from the individual.

A Judge does not carry judicial sovereignty around in his person.

He does not become a Judge merely because he personally declares himself to be one.

The office exists because a legal order creates, recognises and defines it.

Therefore, when the legal foundation of the office changes, the nature and extent of the authority attached to that office necessarily become questions of law and constitutional order.

This is why the Judge must never confuse personal authority with institutional authority.

AND WHAT OF NEMO DAT QUOD NON HABET?

Someone might be tempted to invoke the venerable legal maxim:

Nemo dat quod non habet — no one can give what he does not have.

It is an interesting analogy, but we must be precise.

The maxim principally concerns the transfer of title or rights: a person cannot ordinarily transfer a better title than the one he possesses.

It would therefore be an overstatement to say that nemo dat quod non habet is the legal rule establishing that a Judge does not own a Court and therefore cannot give it out to another person.

The deeper argument lies elsewhere.

The Judge does not possess personal proprietary ownership of judicial authority in the first place.

The authority is attached to the office and conferred by law.

He exercises it. He does not own it.

That distinction is far more important—and far more defensible.

THE DANGER OF PERSONALISING PUBLIC POWER

Perhaps this discussion extends beyond the judiciary.

A President does not own the Presidency.

A Governor does not own the State.

A Minister does not own the Ministry.

A Police Commissioner does not own the police command.

A Judge does not own the Court.

They occupy offices created for public purposes.

They exercise powers conferred upon those offices.

And when they leave, the offices remain.

This is one of the defining characteristics of a constitutional state:

Public power belongs to the legal order, not to the personality temporarily entrusted with exercising it.

The moment public officers begin to regard institutional powers as personal possessions, the distinction between public office and personal authority begins to erode.

That is why constitutional systems place so much emphasis on institutions, procedures, accountability and the rule of law.

RESPECT THE JUDGE. BUT WORSHIP THE LAW.

There is nothing wrong with respecting Judges.

There is nothing wrong with recognising the enormous responsibility carried by judicial office.

There is nothing wrong with acknowledging the authority of a properly constituted Court.

But perhaps we should be careful about language that inadvertently transforms institutional authority into personal authority.

The Judge deserves respect.

The Bench deserves respect.

The Court deserves respect.

But ultimately, the greatest respect must be reserved for the law from which the Court derives its authority.

Because if we teach society that the Judge is powerful because he is personally powerful, we have misunderstood the foundation of judicial authority.

The Judge is powerful because the law has entrusted the office with power.

And that is precisely why the Judge must remain subject to the law.

PERHAPS “THIS COURT” IS MORE THAN WORDS

I am therefore not proposing that Judges should be prohibited from saying “my Court.”

Nor am I suggesting that every Judge who uses the expression has committed an institutional offence.

My proposition is much simpler:

Perhaps we should become more conscious of the language we use around public power.

Perhaps Judges should be encouraged to say:

“This Court.”

“The Court.”

“The Court finds…”

“The Court holds…”

rather than constantly personalising the institution as:

“My Court.”

Not because the latter is necessarily unlawful.

But because the former may serve as a subtle reminder of something every holder of judicial office should always remember:

The Court was here before you.
The law was here before you.
The jurisdiction was here before you.
And, ordinarily, they will remain after you.

You occupy the Bench.

You do not own it.

You exercise judicial power.

You do not personally possess it.

You preside over the Court.

You do not constitute its entire existence.

And when your tenure ends, another person will sit where you once sat.

The Court will remain.

THE FINAL QUESTION

So perhaps the question is not really:

“Can a Judge say ‘my Court’?”

The more interesting question is:

“What happens to a legal institution when those entrusted with its powers begin to psychologically regard those powers as personal?”

That is a question worth asking.

Not because Judges are inherently untrustworthy.

Quite the contrary.

It is precisely because judicial power is so important that we must remain vigilant about its source.

The safest Judge may not be the Judge who thinks:

“This is my Court.”

Perhaps the safer Judge is the one who continually remembers:

“I am the person presently entrusted to sit in this Court, under this law, exercising this jurisdiction, on behalf of this legal order.”

That is not a diminution of judicial authority.

It is its proper foundation.

Because ultimately:

A Judge occupies the Court.

A Judge presides over the Court.

A Judge exercises the authority of the Court.

But the Judge does not own the Court.

— THE BRIEFLESS ADVOCATE