The Sword of Justice:

            It is probably easier to eliminate what it cannot tell us, which is how justice is applied in practice.  What symbolism can be found in the design and decoration of the Old Bailey is aspirational rather than prosaically representational; it cannot tell us whether our judges are honest or corrupt, or whether our laws are just, but it does illustrate what we expect of them both.  It would require several volumes, and a better scholar than me, to produce a comprehensive exegesis of the symbolic elements of the Old Bailey, but even to this lay observer two features sing out in defiance of both expectation and juridical trends.

            Probably the most famous feature of the Old Bailey is the gold statue of Justice atop its dome, which stands implacable guard above the intersection of Newgate and Old Bailey streets, a set of scales in her left hand and a raised sword in her right.  She is helmeted but not, as widespread belief has it, blindfolded.  The misconception of Justice as always blind is common.  Even the Official Guide to the Old Bailey (published by the Corporation of London and available from the Guildhall Library Bookshop) mistakenly claims that its Justice is “especially distinguished from other statues of Justice by not being blindfolded.”  Not true.  Similarly clear-sighted Justices can be found around the world, from the Stuart Street entrance to the law courts in Dunedin, New Zealand, to the main entrance to the United States Supreme Court in Washington, D.C., and from the City Hall in Erfut, Germany to the Storey County Courthouse in Virginia City, Nevada. Justice, or Justitia, Themis (and, sometimes, her daughter Dike), or Ma’at – respectively, her Roman, Greek and Egyptian incarnations – is also depicted without a blindfold on Roman coins from the administration of Septimius Severus and in paintings by, among others, Pietro Perrugino, Rogier Van der Weyden, Raphael, and Joshua Reynolds.

            According to the United States Supreme Court’s website, the blindfold was a 16th century addition by satirists attacking a corrupt regime, which they claimed was protected by a judiciary either tolerant or ignorant of its legal abuses. Not surprisingly to anyone who has played “pin the tail on the donkey,” Justice’s blindfold is a handicap rather than an aid to her pursuit of the truth.  At least one notable example that I have found – Albrecht Durer’s woodcut of Justice being blindfolded by a fool, from his illustrations for Sebastian Brant’s ‘Ship of Fools’ (1494) – narrowly predates this period but is similar in theme.

            A modern version of this satirical abuse of the image of Justice is the statue of her, lassoed by ropes, that appears on the cover of the heavy-metal band Metallica’s 1988 album And Justice For All.  If, in response to this album cover, four hundred years from now the figure of Justice is regularly depicted bound by ropes to symbolize self-restraint, it will be analogous to the transformation of the originally parodic blindfold into the virtue it is perceived to be today.

            Whatever its genesis, the image of blind justice is not particularly cogent.  If Justice is truly just, what need has she for a blindfold?  On the contrary, she requires clear, unencumbered vision to appraise the case before her and consider all the facts that must be weighed in her infallible scales before she can punish the party found wanting with her sword.  That is the ideal embodied by the statue of Justice that presides over the Old Bailey.

            But how closely does this hortatory model resemble the actual proceedings in the courts below her?  Refreshingly, and with one prominent exception, reality is not far from the ideal.  Almost without exception English judges are respectable and respected.  Few questioned Lord Hutton’s qualifications for presiding over the inquiry into the death of Dr. David Kelly or Mr. Justice Moses’s ability to apply the law fairly to the facts of the notorious Soham murder case.  Similarly, public faith in the fairness of the common law and in the adversarial trial system seems immune to the skepticism with which other institutions – from the Church to Parliament – are regarded.  In other words, Justice’s impartiality and the accuracy of her scales are reflected in practice.  Her sword, however, appears to be rusting in its sheath.  For it is when we come to the punishment of the guilty that the criminal justice system falls short of the ideal.

            The sword is not a symbol of community sentencing or rehabilitation.  There may be a place for both of these measures in the justice system, but most of the public recognizes what Justice embodies: the necessity of real punishment.  A society that permits those who violate its laws to avoid the full force of communal condemnation risks slipping the bonds that hold it together.  Skills training, education and other progressive elements of the penal system are supplements to, not substitutes for, real punishment.  Justice threatens with a sword; she does not beckon offenders to a therapist’s couch.

            Below the statue of Justice, an inscription carved in stone reinforces this message: “Defend the children of the poor and punish the wrongdoer.”  These words are familiar from Coverdale’s translation of Psalm 72 in the Book of Common Prayer and their import is relevant more than 400 years after they were translated and 2500 years after they were first written.  We expect our criminal justice system to protect the most innocent and vulnerable members of our community and to punish those who harm them.  Other translations of the same verse make it plain what such punishment demands.  The New International Version says that the righteous king “will defend the afflicted among the people and save the children of the needy; he will crush the oppressor” and the King James Bible says, no less equivocally, “He shall save the children of the needy, and shall break in pieces the oppressor.”  There can be little doubt that when Frederick William Pomeroy carved this verse into the granite stone of the new courthouse that it meant what the Rt. Hon. David Davis recently affirmed, which is that justice sometimes demands death.  Whatever a sword may represent, it most certainly does not represent a “life” sentence – that ghastly misnomer for the 15-year sentence murderers are likely to receive today.

            A recent YouGov poll found 56% support in England for executing child-killers.  This public preference keeps faith with the message emblazoned on the august face of the Old Bailey.  Although I do not see a reason to stay the executioner’s hand for those fortunate enough to select victims aged 18 rather than 17 and would, with Mr. Davis, extend the death penalty at least to serial killers, there is an undeniable revulsion occasioned by the violent death of a child.  It is probably not coincidental that advocates of reintroducing the death penalty often unconsciously echo Psalm 72 by presenting their case in the context of child murders.  Children are archetypal victims.  Mostly defenseless and at the mercy of adults, their murder represents the most dangerous transgression of the safeguards of ordered society.  Conversely, a community whose most vulnerable members are safe is a society in which all are safe.  I suspect that behind the persistent popularity of the death penalty, even in countries that officially condemn it such as the United Kingdom, France and Canada, is the legitimate fear that a society that cannot bring itself to impose the ultimate sanction on child-murderers or serial killers cannot be relied upon to take more minor offences seriously.