Keep the Faith, Look the Part and Wear the Wig

Introduction

When a break in a 400 year old tradition of the wearing of judicial and legal apparel is contemplated, the onus is upon those seeking that change to justify their position, not upon those who would retain the status quo.

Whilst observing that no legal catastrophe nor diminution in respect for the law has resulted in those countries and jurisdictions which have abandoned the wig, Mr. O’Neill has not nominated what actual benefit has resulted from it. No practical improvement in the discharge of the Court’s business that would result from the proposed shedding of wigs has been advanced.

The fact that wigs have survived well past their supposed use by dates in many jurisdictions and have confounded the confident predictions of such judicial luminaries as Sir Garfield Barwick and various Law Reform Commissions as to their imminent demise, means that in many quarters they are still valued highly and the issue refuses to die.

Mr.O’Neill’s main arguments for change are inconsistencies between and within jurisdictions and the alleged anachronism of that particular component of legal attire.

Inconsistencies

One may question whether the existence of some variations and inconsistencies within and between our legal system/s is such a big problem or one demanding enforced uniformity. Comparison with the practices in other countries begs the question, “what is wrong with being unique or standing alone on this issue”. Heed Emerson’s famous dictum “A foolish consistency is the hobgoblin of little minds”.

To take some of the Queensland Courts as an example, the main inconsistencies in the wearing of wigs consist of Judges in the Court of Appeal who do not wear wigs combined with the requirement of Counsel to do so, and Judges in the higher and intermediate Courts who may either not wear a wig at all in Court or remove it within Court, thereby inviting Counsel to follow suit.

These so called inconsistencies are merely deviations from the norm and involve only form and not substance. The substantial work of the Court proceeds normally and the respect shown to the Court by its Judges and Practitioners is undiminished. Within those prescribed boundaries the inconsistencies in the practice of wearing of wigs is merely a manifestation of individual taste, causes no great inconvenience and is not a sound basis for enforcement one way or the other.

In any event those who created or supported the inconsistencies in the first place by abandoning the wig, can hardly be heard to then complain about the very inconsistency which has resulted. If consistency of legal apparel is paramount then restoring the wig would more easily restore that desired consistency.

Anachronisms

Traditional legal attire is not at all anachronistic within its rightful place. Having been worn for an unbroken period of hundreds of years, it of necessity remains contemporary in the forum where it was intended to be displayed namely the Courtroom and the approaches to and from the Court building and for the purpose for which it was intended, namely, a uniform for Judges and Barristers. The fact that such attire would look ridiculous elsewhere is simply to illustrate that most other forms of attire including ceremonial academic attire, sporting attire, or any other “activity specific” attire would also look ridiculous outside its own specific sphere of activity.

The Place of Legal Attire in Promoting Respect for the Courts

A person of kindred spirit to Mr.O’Neill, Chief Justice Martin of W.A., has purported to make legal attire in that State more contemporary by abandoning the wig and has made menacing mutterings about the place of robes in his State’s courtrooms. If wigs are to be abandoned then why indeed not robes also? What is the logical justification for any item of apparel? Why not adopt the American practice of counsel appearing in street clothes if contemporary apparel is the ultimate objective?

The fact that the safari suit was once the last gasp in contemporary men’s attire perhaps highlights the virtue of hundreds of years of uniformity of legal attire in resisting both the changing whims of fashion and the bizarre individualistic appearances of the eccentric and remains a constant reference point, another golden thread of continuity in the life and history of the English common law justice system which we have inherited and continue to use.

Just as robes make an individual’s personal clothing irrelevant, so does the wig produce an even playing field for the follicly challenged and the extravagantly hirsute.

Uniformity in legal attire illustrates a Barrister’s credentials to practice within in Court which sets him/her apart from others in a Courtroom who are not so qualified to practice. It also helps to reduce prejudicial influences of judgement which flow from superficial, stereotypical personal appearances so that litigants and their supporters can perceive equality before the law.

The Place of Legal Attire in Promoting Respect for the Legal Institutions

Judicial and legal attire does preserve and promote respect for, the status of, and appropriate solemnity in, our Courts. One has only to contrast the relatively informal atmosphere of a Magistrates Court where no legal attire is worn with that of the higher Courts where it is.

I challenge any admiration for the dress codes in the various European Courts that Mr. O’Neill listed. I once observed a surly Nordic thug in a Danish Court in Copenhagen being tried, convicted and sentenced to gaol for domestic violence. The female prosecutor wore a blouse, nondescript skirt and open sandals. The Defence lawyer wore a short sleeved shirt, light coloured slacks and casual shoes. The Judge and her two lay assistants were similarly attired. The Court room resembled a University tutorial room and the resultant atmosphere and sense of occasion were zero. It was a spectacle and process neither to be admired nor followed.

“Theatrical” components of courtroom procedure magnify the sense of occasion and solemnity and thereby help to maintain respect for the law. When the Courts insist on such “theatrical” language as “Your Honour” “May it please the Court”, “With the deepest respect”, “In my respectful submission”, “With the indulgence of the Court” “My learned friend” etc., and disapproves, as it has recently, of familiarity in addressing the Court, eg. “Good morning your Honour”, then equivalent “theatrical” attire, including the wig, sits comfortably alongside that Court sanctioned language to enhance the resultant “theatrical” product.

 How Legal Practitioners and Courts are Perceived by the Public

The American travel writer Bill Bryson when visiting Brisbane a few years ago spoke admiringly of cricket on the t.v. and the sight of bewigged and robed Barristers walking to and from Court as valuable cultural ornaments distinguishing Australian cities from American cities.

This perhaps reflects a cultural reality that today’s public still expects its Judges and Barristers to dress in their traditional garb. Occasional mockery of that garb really only disguises an underlying respect for and trust in the legal process and the persons who comprise it. Put another way the public expects its Barristers, (and Judges) to “look the part”; and nothing so “looks the part” as a Barrister or Judge fully robed and wigged.

Summary

That there is continuing debate on this topic illustrates the unlikelihood of ever achieving uniformity of opinion. Arguments put forward on this topic invariably amount merely to personal preferences.

Whatever may be the case in Civil Courts or in jurisdictions which are rarely visited by the public, in those jurisdictions where the legal system is most on public display, namely the Criminal jurisdiction and perhaps the Family Court jurisdiction, full legal attire including wigs should be retained to maintain and promote just those elements of solemnity and respect so necessary in those often highly charged forums.

Ron Swanwick

Office of Director of Public Prosecutions (Qld)