[A] great and vital question has been raised in India. (Hear, hear.) It is...the question whether Englishmen in that part of the empire shall or shall not be placed at the mercy of native judges. ... [I]n dealing with foreign countries we have been singularly sensitive of the danger of subjecting Europeans to Oriental tribunals. In Turkey, in Egypt, on the shore of Africa, in China, in Japan, we have always pursued the same policy—to insist that an Englishman, if he has a cause to try, or if he were indicted or attacked in law by any native, should have someone of his own blood and religion...in the Court by which he was tried. ... What would your feelings be if you were in some distant and thinly-populated land, far from all English succour, and your life or honour were exposed to the decision of some tribunal consisting of a coloured man; what would your feelings of security be? (Hear, hear.) You would know that his thoughts were not your thoughts, that he could not justly estimate the circumstances or feelings in which you acted (hear, hear), and that, perhaps, his view of judicial duties was not such as Englishmen are accustomed to find in the Judges to whom their fortunes are consigned. (Cheers.)

It is possible that the critics of cross-referencing worry that the practice of citing foreign decisions will lead American judges to decide cases not through legal analysis but through “nose-counting” — that is, tallying up the number of countries on each side.19 There is a further worry, not entirely unfounded, that foreign opinions are subject to misunderstanding, because American judges are unlikely to grasp the foreign contexts in which those decisions arise.20 Moreover, even if the decisions of foreign courts do not bind American judges, they can influence them — indeed, that is the very aim of the cross-referencing practice. Finally, those who see judges throughout the world as belonging to the same social caste — one sharing generally “leftish” political views, and perhaps including state court judges, law professors, and lawyers generally — may not believe that this influence is salutary. Wielded by those whom Americans have virtually no voice in choosing, this influence, it is feared, could easily get out of hand, undermining basic American democratic values.21

The American system of jurisprudence recognizes a wide range of factors, predispositions, prejudices, and experiences that might cloud our judgment, or affect our objectivity — sometimes even without our knowing it. It goes to great, perhaps even extravagant, lengths to safeguard the process of judgment in a criminal trial from the human weaknesses of those who must decide on innocence or guilt. Even then, of course, the process sometimes fails. Why would we settle for anything less when interrogating the natural world, or when attempting to decide on vital matters of politics, economics, religion, and ethics?

If judges are pragmatic, as I think they largely are in our system, it can only be in the everyday sense of the term. But immediately the counterexample of Holmes, a gifted and serious though not systematic philosophical thinker, comes to mind.

The moment juries or judges go beyond their functions, and take upon themselves to lay down the law or find the facts, not according to the law as it is, but according to the law as they think it ought to be, then the certainty of the law is at an end; there is nothing to rely upon; we are left to the infinite variety and uncertainty of human opinion; to caprice which may at any moment influence the best of us, to feelings and prejudices, perhaps excellent in themselves, but which may distort or disturb our judgment, and distract our minds from the single simple operation of ascertaining whether the facts proved bring the case within the law as we are bound to take it.

Judicial decisions in Courts of justice are ranked by Lord Hale as one of the grounds or constituents of the common law.

In other words, those great judges, although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so. The reader will observe that they do not say simply that it is reasonable on grounds of policy to sacrifice justice to the owner to security for somebody else but that it is reasonable to deal with the vessel as an offending thing. Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language.

I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.

We are sometimes up against a flat refusal to apply this law rigidly. One People's Judge told me flatly that he could never bring himself to throw someone in jail for stealing four ears. What we're up against here is a deep prejudice, imbibed with their mother's milk... a mistaken belief that people should be tried in accordance not with the Party's political guidelines but with considerations of "higher justice".