The Medico-Legal Society of New South Wales Inaugural Address by Mr. Justice Bonney.*
A society such as this, which has for its purpose, collaboration between the two great professions of medicine and law, is long overdue in New South Wales. Each profession can improve itself, and render better service, by entering into this friendly intellectual relationship with the other and by an exchange of ideas in matters of common interest and concern. For one thing, we might clarify and crystallize our ideas upon certain public questions, in which our, two professions might well be expected to take part, and offer a guiding hand. I have in mind such problems as the obligations of society towards its mentally deficient members, and the problem of the proper understanding and treatment – legally, medically, and psychologically – of crime. There are many- others.
I used, advisedly, the expression “offer a guiding hand,” because the ultimate decision on most matters of importance rests with the lay public, who are ill-equipped with the necessary technical knowledge to form an instructed conclusion. Ignorance – and by ignorance I mean ignorance of the true and full facts which should form the basis of a person’s judgment – is one of the most dangerous and insidious enemies of civilisation. It is my firm belief that we have reached a stage of civilisation, at which every man must be encouraged to assimilate knowledge of the things in which the world is advancing by leaps and bounds either to its destruction or, if discovery is properly understood and used, to its most glorious era.
At this point, let me return to my theme – the obligations of our own professions in a world such as this. Both professions, medicine perhaps more than law, have been inclined to treat medical or legal learning as something from which the ordinary person should be rigidly excluded. That attitude is due for reform.
If we wish to enjoy the respect and confidence of the general lay public, if our opinions on matters on which we can speak with authority, are not to be regarded with suspicion, we must treat the layman as an intelligent being, who should be steadily encouraged to prefer knowledge to ignorance, even in our own particular fields.
It is gratifying, therefore, to see many of the fundamental facts of medical science, and many great modern discoveries, finding their way into the press, and into popular and general literature. People distrust mumbo-jumbo. They like to be told plain facts in plain language. They respect and have confidence in the man who will tell them plain facts in plain language. Unfortunately, doctors and lawyers have had too little influence upon public opinion in matters in which the public should look to us for information, and trust us. The plain truth is that doctors and lawyers are, in a sense, unpopular with the public. That is our fault, not theirs. The remedy lies with us and we must seek it, even if it does involve a liberalising of some of our rules of etiquette.
The medical profession, in conjunction with its associated sciences, such as psychology, biology, chemistry, bacteriology, cytology, and latterly even physics – has conferred ever increasing benefits upon mankind. Some of those benefits have developed so quickly that the world has found it difficult to adjust itself to their consequences. Take one example. Since the beginning of this century there has been a substantial increase in the expectation of life. Fewer people are cut off in their youth, their prime, and their later middle life. That means fewer openings for younger people waiting to succeed to the positions of those higher up. It also means that there are more old people to be maintained by various forms of old age relief. Thus the blessing of a longer life brings with it a first class economic and political problem. Medical science has, moreover, increased human efficiency during the prime of life, by reducing the incidence and severity of many ailments that affect the daily work of the community. New mischiefs, however, have been found or intensified, such as gambling, and industrial discord, whereby benefits which might have had great results to the community are out-balanced by evil and unhappy ways of life. The only real medical panacea would be a cure for human stupidity in its many and flourishing forms.
The lawyers too have played their part. It is largely to the lawyers of the past that the people of to-day can attribute their freedom from autocratic oppression – perhaps I should say the remnants of their freedom from autocratic oppression. Autocratic oppression can assume many forms; not merely the form of a Hitler, a Mussolini, and the rest of them; but also oppressions more insidious but just as real – the black-marketeers, the bureaucrats, and that whole host of small fry who contribute their meed of inefficiency and arrogance in making life restricted and narrow. These men, from the most important and most dangerous, down to the smallest and most insidious, have always been, and always will be, scowled upon with disfavour by the freedom- loving profession of the law.
Let me emphasise the attitude of the lawyer in these matters by referring to two ideas that are part of the very soul of the British lawyer. One is that a person charged with an offence is deemed to be innocent until he is proved to be guilty. Lately, there has been a tendency, where bureaucrats have the making of regulations, within their ever increasing powers, to reverse that order, and to presume guilt unless the accused party can establish his innocence. Few laymen realise, as the lawyers realise, that the manacles of oppression are cast in that mould.
The other idea, which is part of the lawyer’s soul, is that all judicial hearings must take place in public. The lawyer regards publicity of judicial hearings as one of the most treasured products of our history. Liberty thrives on publicity. Oppression and secrecy are inseparable. In 1913, years before Hitler became the archetype of evil, and tried to dominate the world by secretly doing away with those who opposed him, the greatest court in the Empire used these words in relation to an undefended divorce case that had been heard behind closed doors:
“One’s experience shows that reluctance to intrude one’s private affairs upon public notice, induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals, if only the tribunals were secret, but the concession to these feelings would tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure.”
In that same historic judgment one finds this statement by Hallam, the historian, accepted as correct:
“Civil liberty in this kingdom has two direct guarantees, the open administration of justice, according to known laws, truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to enquire into, and obtain redress of, public grievances. Of these the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found, both in its judicial institutions, and in their constant exercise.”
Let me take this opportunity to set at rest an argument that is sometimes advanced in favour of secret trials, at any rate in divorce cases, and even in criminal cases. I have heard it said that these trials draw an evil-minded crowd of spectators, who merely attend for the excitement of listening to evidence of immoral or brutal conduct. There is no truth whatever in that suggestion. I can tell you that, during the seven years that I have presided day after day in the Divorce Court, I have not once seen even one person in the public gallery whom I remotely suspected of being there in the expectation of hearing unsavoury evidence. Generally the public gallery is empty. When people are present they are mostly either parties or witnesses in the next case, or friends or relatives having a direct interest in the proceedings. The presence of the latter class is beneficial, because their mere presence often has a restraining influence upon a party or witness who might otherwise be untruthful. Occasionally a party has to give very distressing evidence, as in nullity cases. On these occasions the public, if any are present, and the press reporters, leave the Court without being asked to do so. All that is necessary is for the judge to ask Counsel whether the evidence is likely to be distressing and embarrassing to the witness; if Counsel say that it is, the press reporters leave, and any others follow.
But let us not – lawyers and doctors I mean – take ourselves too seriously. Like other great people, we have our peculiarities. One of those peculiarities has been, and still is, a tendency to express ourselves in other languages. The lawyers resort to Latin, and the medical profession resort to Latin and Greek, and I suspect that they do it for the same purpose, namely, for the purpose of keeping our knowledge to ourselves, and, as a means of impressive escape from exposure of our ignorance. For these purposes the lawyers use Latin (of sorts) a great deal; so do the physicians. The surgeons seem to have a preference for Greek – possibly in the vain hope that some of their secrets might remain hidden from the physicians. I have been quite a successful patient in my time, and I can assure you that it is a great comfort to the patient to have something that at least sounds like an ailment, even if it is only chronic euhygeia.
When one asks – What can the legal profession gain from the medical profession? – it is not sufficiently realised amongst the lawyers that a knowledge of medical science and practice would often be of great value in their understanding of life, and in the influence which they could exert upon the development of the law. In my own field, matrimonial causes, I often wish that I had been a suburban medical practitioner for ten years, because there are many aspects of domestic life, which no one understands, as accurately, and as sympathetically, as the family doctor. Speaking for myself, I hope that the contact, to which I look forward, with my medical brethren in this society, will help to resolve much that has baffled me in the understanding of human nature.
Let me turn from my own particular field to a branch of the law which is of great importance to the community-the law relating to mental conditions. Here indeed is a field in which the lawyer – especially the lawyer who aspires to enter political life, and in that way exert some constructive influence on affairs, could profit immensely by a practical and scientific understanding of mental conditions, their causes, and their proper treatment. Mental illness and abnormality are matters which very deeply concern the welfare of our country as a whole. It is not merely a question of the provision of sufficient lunatic asylums for the incarceration of dangerously deranged persons, nor is it merely a question whether our provision for, and treatment of, these unfortunate people are as good as they should be, or as bad as they can be. As I see it, humanity is only just beginning to understand itself, and to study itself scientifically. Who can tell just where to draw the line between the normal and the abnormal mind, either as a whole, or in any particular respect? By legal standards a person might be perfectly sane, and yet by medical standards, suffering from a psychosis or a neurosis undermining his usefulness in the community, or even rendering him a potential danger to others. The law, which in this respect is mostly statutory law, the law made from time to time by the people’s representatives in Parliament, tends to confine itself to the more extreme conditions, namely, incapacity and lunacy, and to provide more particularly for restraint of the person and management of the property of the lunatic or incapable person. A century ago, the treatment which the law and the community meted out to the insane was unspeakably barbarous. They were regarded as evil people rather than sick people, and that history has, to this day, cast its forbidding shadow over the attitude of the law and the people towards mental infirmity.
The medical members of this society will probably agree that the law should make much more comprehensive provision for mental illness in its many forms, than it does at present. But before nervous and mental conditions, including psychological conditions, can be brought within the broad purview of public health, rather than the narrow scope of lunacy, it will be necessary for the general public to break away from past fears and prejudices. There is something about the word “mental” which evokes in the ordinary person a sense of horror, and a feeling that some taint is necessarily involved. They refuse to recognise as “mental” any condition short of overt violence or dangerous eccentricity. Thanks to the use of such words as “madhouse” and “lunatic asylum,” which still linger in our midst, the public is not quite ready to accept the more enlightened view that mental, nervous, and psychological conditions, should come within the broad scope of public health. Indeed I think the very words “lunacy” and “lunatic” linked as they are with a savage tradition, might well be abandoned in favour of more suitable terms. For the rest, enlightenment is a responsibility of the medical and the legal professions.
Who, I ask, are better qualified to mould public opinion is such matters than the followers of our two professions? But, to achieve anything, there are two essentials; we must take the public into our confidence, and not treat them as people whose interest and curiosity should be suppressed; secondly, we must gain the trust of the public in ourselves and our knowledge-even above their trust in astrologists. Surely we can so mould our etiquette as to yield something to a desire of the public to know who is professing to enlighten them, while securing ourselves against advertising abuses. Having stated a few of the problems, I leave the rest to you.
The next great field in which our two professions can collaborate for the benefit of the community is that of criminal law, including the general treatment of crimes and criminals. The lawyer, the psychologist and the moralist do not always agree about the essential nature of a crime; and I do not suppose they ever will. So much the better; since disagreement is at least a sign of intellectual vitality. No one, I imagine, believes that a community, whatever degree of educational and social perfection may be reached, will ever be without its criminals. In the meantime, the legal and medical reformers have such different ideas about the best ways of dealing with the potential criminal in advance by prophylactic methods, that there is plenty of room for discussion.
The remedial treatment-or punishment-of the person who has become an actual offender has changed considerably in the last century from extreme severity, in most cases, to great leniency in many cases. The only present suggestion which I make, for early consideration, is that every first offender, whether punished or not, should be examined, and treated, by a small board of specialists in the diagnosis and treatment of anti-social conduct. If a large proportion of first offenders could, by proper treatment be psychologically immunised against any further lapse, the result would be of great value to the community, and its future generations.
In my own present branch of the law- matrimonial causes-for the past seven years I have been treating symptoms-which, my medical friends will admit, is an unsound method of treatment. Others, the family doctor, the social worker, and the solicitor, are doing valuable work in treating the causes. Few people realise their work in preventing the breaking up of homes; and I wish to say this of solicitors in particular, that I have found, almost without exception, that if a reconciliation is at all possible, they always do their best to bring it about.
There remains one aspect of matrimonial law which calls for our urgent consideration-the custody of the children of a broken home. I mean custody in its broadest sense-the whole welfare of the children until they are properly able to be left to their own devices. These children, owing to their upsetting experiences, are liable to become the troublesome people of tomorrow, and the community owes it to itself and to them, to see that they get the best consideration possible, from the moment the suit is instituted.
There is another matter to which I would like to refer. Every year there is an increasing tendency in the professions to specialise more and more at the expense of general knowledge. It is no longer considered necessary, or even desirable for a professional man to have broadened his general outlook, or to have fortified his mind to withstand the narrowing tendency of having only one intellectual interest, by building the professional superstructure upon a sound and lasting general education. I may be expressing an outmoded idea, when I tell you that it is my clear conviction, that an advanced basic education, either in the classics, or in modem languages and comparative philology, or in mathematics, or in history, or in psychology, makes the brain a better machine, and the mind more receptive over a wide field, and the judgment better balanced, than they are without the aid of an early comprehensive training. Let me take two instances to illustrate what I am stressing. One of the greatest and most liberal-minded Australian lawyers of all time, was Leverrier. His legal knowledge was immense, his judgment perfectly balanced. But he was, as many of you may remember, not only a lawyer, but also a scientist of great attainments, a mathematician, and a man possessed of wide general learning. All these contributed to his greatness as a lawyer. Another great Australian whom many of you will remember was Edgeworth David. As a geologist he combined a great knowledge of detail of Australian geology, with a remarkable capacity for evolving from detail a clear and comprehensive picture of the geological structure and history of the continent as a whole. Edgeworth David before he became a geologist was a classical scholar of considerable attainments.
Each one of you, no doubt, will readily call to mind, from your own experience, professional men graced with general learning; men who can leave the highroad of some specialised pursuit, and enjoy, with delight to themselves and their friends, the broad and lovely fields and bushlands of knowledge. I suggest, therefore, that the great question of education, as it affects our two professions, is one which a society such as this might well examine. Let it be understood, however, that I am not attacking specialisation; it is both desirable and inevitable. What I am suggesting is that there should be a proper foundation beneath it.
In conclusion, I hope that such thoughts as I may have been tempted to utter in the course of this address, if not acceptable to Minerva, might possibly be provocative enough to stimulate useful ideas in others. As I said, humanity is only just beginning to understand itself, and to study itself scientifically.
This society has sprung into life at one of the greatest and most anxious periods of all history; at a time when it was never more necessary for all men of special learning to accept their responsibilities towards the community. Let us, therefore, following the example of other learned associations in our land, proceed to fulfil our aims and ambitions of useful achievement.
* Delivered on 19th September, l947, at the inaugural meeting of the Society by the Hon. Mr. Justice Bonney as its first President. Owing to considerations of space some portions of the address were ‘unavoidably’ omitted by the editors of the Australian Law Journal, from which this address is taken.