This is a podcast from the archives of the BBC Reith Lectures.

This lecture in the series Law, Justice and Democracy, given by John McCluskey, was originally broadcast in 1986.

The life of the law has not been logic, said Oliver Wendell Holmes. It has been experience.

That experience included, he said, the prejudices which judges share with their

fellow men. No one could dispute that judges are likely to share the prejudices of their fellow

men, though it is more common for the details of such prejudices to be disclosed by historians than by

contemporary studies of serving judges.

And prejudices, though they may fall into patterns, are selective.

The prejudices of elderly, white, affluent males are bound to be different from the prejudices of young, black, impoverished females.

So there's limited reassurance to be found in the fact that some others in a particular society

share the same prejudices as some judges, or that some of a judge's prejudices are shared by some of his fellow citizens.

But does it matter if a judge has a few prejudices, provided he keeps quiet about them?

Well, obviously it doesn't matter if the prejudices are irrelevant to the dispute which is being

judicially considered.

A particular judge might harbour a prejudice about rastafarians or second-hand car salesman,

but it would hardly affect his or her capacity to decide a patent case between two public

companies.

The other side of the coin is that it doesn't matter, provided that care is taken to ensure

that as far as possible, issues on which judges are likely to have significant and relevant

prejudices are not remitted to them for decision. Judges will no doubt do their human and professional best to eliminate from

their reasoning and decision-making the distorting effects of prejudice. But even at that,

it must be conceded that the influence of prejudice must not only be avoided, it must be

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