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All This Horsehair Makes Me Itch

All This Horsehair Makes Me Itch

Monday 28 May 2012

Anachronistic! Out of step! Pompous! Laughable! Ridiculous! Those are just a few of the comments people who wear robes get. Not particularly complimentary, that’s for sure. But no one seems to complain about the fireman’s uniform, the chef’s checkered trousers, the policeman’s outfit or the clergyman’s habit. Why not? Why is the vitriol vented wholly and solely to the advocate adorned in his or her robes? People seem to say that the advocate can do an equally effective job when wearing a suit as when wearing robes. 

Any number of reasons is given for the reluctance to jettison robes. The most normal is the one about solemnity of occasion. When in court one needs to be reminded of the seriousness of the occasion so we do that by wearing 16th century clothing. That’s the argument anyway. Another reason is anonymity. If we are fully robed it is difficult to identify one person from another as they all look so very much alike when all in their full regalia. That’s how the argument goes, anyway. Yet another reason is tradition. We are linked to our rich past by the vestiges and trappings of its ancestry and by way of preservation of that antiquity, we wear the same clothing that was worn in a bygone era. Well, some put the argument that way. Are any of those arguments convincing in the year 2012 in bustling London or in busy Melbourne? Probably not, but one thing is certain, the profession and the public divide when it comes to the subject of robes.

But first, a story, directed to the anonymity argument.

In the 1980s the Supreme Court of Victoria was “blessed” with a particularly colourful personality. He was a little ahead of his time in many respects. He stood about five foot four inches tall, was portly and completely bald (not even a Friar Tuck hairline). He wore very large dark horn rimmed glasses. Clever as he was, he brought new meaning to eccentricity. One day, after he had stepped from his car and was entering the court building, he walked into a group of young men who were swearing, pushing each other and behaving badly. His Honour asked them to let him pass but they obstructed his way and addressed him with pleasantries involving “old geezer”, “silly old codger” and “jumped up old git”. He unsuccessfully tried to walk around them and eventually made it into the building. At 10:30 his Honour was dealing with bail applications and to his surprise he had before him the ringleader of the group from the car park. On recognizing the applicant for bail the judge lifted his wig and said “Remember me?” The application for bail was abandoned before it could be refused.

He was the same judge who was hearing an argument on some point and in a flash, stood up (no bow) and literally vanished from the bench. All were left wondering what happened. Fifteen minutes later he returned, took his seat on the bench, called on the part heard case then very calmly said “gentlemen, I must apologize for that quick exit. The dangers of a high fibre diet!”

Over 30 years ago the Family Court developed the idea that informality and a relaxed attitude should pervade all hearings. As a result the Family Court abolished robing of counsel and judges. That was until a deranged litigant entered the court and shot dead a Family Court judge and took pot shots at several counsel. Immediately thereafter the court reinstated its robing practice. There have been no shootings since.

It’s hard to know whether the wearing of costumes appropriate to a bygone era enhances the solemnity of the occasion in court. When you consider that the tie wig first was seen in the court of Charles II mainly as a fashion statement of the day, the continued wearing of it is difficult to rationally justify on a needs basis. If you look at it as a uniform, just like any military uniform, the explanation is easier. Plenty of ceremonial military uniforms have absolutely no connection with need or utility – instead they are just a part of the rich tapestry of history or tradition.

In Australia, robing has undergone a gigantic revamp over the last 20 years. In the highest court in the land the justices wear a robe identical to the judicial robe worn in United States – a black, collarless zip-up number worn over a suit coat or ladies business attire. Justices in the High Court do not wear wigs. In our federal sphere, the robe is different again (and also no wigs on judges or counsel) it being pleated, open and very much like an undergraduate’s academic gown. In our Supreme Court and in our County Court the robing practice is completely idiosyncratic of the judge. Some don’t robe at all while others do and some wear wigs while others do not. No one seems to care, especially the litigants, despite the lack of guiding uniformity. 

My point is that the institution of court as a solemn place in which serious business is transacted hasn’t diminished by the variant robing practices that have been adopted from judge to judge. Whether the judges are in suits or full or partial regalia, justice is still dispensed without fear or favour. But by the same token, does it make the institution of the law as practised in higher courts anachronistic, outdated or pompous merely by reason of the fact that the dramatis personae in the play that unfolds on the stage of life in court are robed to fullest extent. For centuries no one thought that it did. To my mind, courts still dispense justice without fear or favour even if robed to the hilt. At a creature comfort level, in the winter it can be warming to be fully kitted out. But let me invite you to wear the costume of a silk on a 40 degree summer’s day – shirt, vest, Windsor jacket, Irish silk robe and wig. If you don’t lose some weight under all that clobber then something’s wrong. 

Over here we’ve even had the heated argument between silk and so-called progressive judge who thinks that making orders dispensing with a wig on every one in his court makes for a better quality of justice. Just as he is kidding himself by thinking in that manner, the other conservative approach of being fully kitted up as a precursor to true justice is likewise idiotic. Over here things have reached the ridiculous stage that our legal practice legislation includes a section that says a judge is not permitted to insist that a practitioner robes before he or she can be heard. Good grief! Is this the latest in the triumph of form over substance?

A few Chief Justices ago we had the privilege of the leadership and service of Sir John Young. Sir John was serious old school, having been one of the Scots Guards in the Second World War, a distinguished Melbourne identity and a beacon on company law matters. Even as Chief Justice he occasionally sat doing the day-to-day ruck of cases involving injunctions, bail applications and the usual hurly burly. In a busy court one day a very young articled clerk presented herself on some case in business attire. The Chief Justice asked whether she was admitted to practise to which the articled clerk said she was not. Sir John, politely said he was unable to hear her. The articled clerk increased the volume in her voice and again asked for certain orders. Again Sir John said he could hear her by reason of her status. She moved closer and this time shouted her request for orders. She was escorted out at that point.

Robing has a role. In most European countries and in many African countries legal practitioners in court wear some form of robing. The same goes for most Asian countries. As for the head covering, some European countries adopt a black cap. If the head is covered in some way, why is it said to be anachronistic and old fashioned to wear a wig as the head covering? Is it that people fear antiquity as being the natural enemy of progress? For the life of me I can’t fathom it. 

As you can see from the picture above, I support robing.

Good luck,

Josh Wilson


Dr Wilson’s regular weekly insights into the legal profession are influenced by his decades of experience in court and teaching across the world.  Dr Wilson SC has been practising as a barrister in Australia for over 25 years, having already served in the Melbourne Magic Circle and as an associate to a Supreme Court judge.  His expertise derives from worldwide advocacy experiences and he is usually found in the Supreme Courts and Federal Court of Australia dealing with commercial and equity cases.  Married to a judge and father of three, Josh (and his kung fu black belt) is an advocate of all things law and more.  A legal genius (Josh took Silk in 2008 and holds a PhD in extradition law!) and with a large topping of good humour, Law and More proudly welcomes Dr Joshua Wilson SC as a columnist.

Next week's instalment from Josh takes Law and More readers on a tiptoe down memory lane.


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