KENNEDY BUHERE: Judges and their love for classics

It matters not whether you curve Caesar as a dish fit for the gods, or hue him as a carcass fit for hounds, the cuts are mortal either way...

The thoughts of great thinkers of the past appear to be guiding some of our judges in determining momentous public affairs issues.

The most memorable phrases they make when delivering judgments are from great fictional writers, philosophers, and statesmen—from the classics—masterworks in literature, philosophy, government, history, religion and the natural sciences.

For example, what excited Kenyans most in the last BBI judgment was Court of Appeal judge Patrick Kiage’s statement: “It matters not whether you curve Caesar as a dish fit for the gods, or hue him as a carcass fit for hounds, the cuts are mortal either way...”

The quote was derived from William Shakespeare’s Play, Julius Caesar. A conscientious Brutus wants Caesar killed without causing damage to his body and without killing Mark Anthony, Caesar’s closest ally. Brutus says: “…gentle friends, /Let’s kill him boldly but not wrathfully. /Let’s carve him as a dish fit for the gods, /Not hew him as a carcass fit for hounds.

Some literature-minded Kenyans quickly knew Justice Kiage had distilled this expression from Shakespeare.

Another judge who drew from the thoughts of great thinkers other than jurists was Justice Fatuma Sichale in her dissenting opinion. Casting doubts on the ideas that argued against the contemplated changes to the 2010 Constitution, Sichale noted:

“What is good for one generation may not necessarily be good for the next; present and future generations should not be ruled by the dead hand of their ancestors.”

The phrase ‘the dead hand of their ancestors’ is an offshoot of the basic idea by American revolutionist Thomas Paine that the actions of previous generations shouldn’t unduly constrain current generations to make decisions about its safety and welfare.

In The Rights of Man, Paine observes: “There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the “end of time.”

What is good for one generation may not necessarily be good for the next; present and future generations should not be ruled by the dead hand of their ancestors

Sichale was raising a contrast between a flexible and rigid constitution. She naturally invoked words from the works of a political thinker who believed in the flexibility of laws and regulations. Whatever the situation, the past provides insights, models or reference points in dealing with all manner of issues, situations and challenges institutions face.

The cultural and intellectual heritage of mankind is relevant for human communities for a number of reasons. First, a study or reading of the works of great thinkers teaches students how to think. The thinkers have wrestled with enduring philosophical problems—human conduct, political action, stability and change, order and freedom among others.

Secondly, it is through reading their works that enables a person, regardless of age, race, profession and station in life, to develop superior conceptual, analytical and problem-solving skills. One learns the elements of reasoning, informal and formal logic, and how to argue with skill, judgement and wisdom.

Thirdly, students invariably develop and become independent thinkers and communicators. You stop becoming anybody’s sheep. And finally, one gets acquainted with the nature and gravity of problems, conflicts that define society and the various ways mankind has invented to resolve them.

In the final analysis, the work of leaders—in government and in the private sector—is to solve problems. Great works of art—fictional and nonfictional—is the place great leaders have had their education for this onerous task.

Scripture says that there is nothing new under the sun. The situations, problems and challenges individuals and institutions face are in the essentials, similar.

Knowledge and understanding of the past give the current generation of leaders—opinion and policymakers—a frame of reference with which to understand and analyse present problems, situations, problems and challenges.

The past provides conceptual frameworks that enrich experience and helps us to find locus and meaning.

The usefulness of the cultural and intellectual heritage of mankind is not the preserve of lawyers and judges. It is equally important to the men and women who manage the legislative and executive branches of the government.  It is no less important to those who manage private sector institutions.

It is important to all who manage other people; those in leadership positions at whatever level in an organisation.

Careful study of the arts and humanities and also the natural sciences give what 'The Yale Report of 1828:  Liberal Education and the Classical Curriculum', a document on American undergraduate education, calls the “discipline” of mind – the ability to adapt to constantly changing circumstances, confront new facts, and find creative ways to solve problems.

Without the discipline of the mind, men become helpless when confronted with changing circumstances, and new facts. They become easily confused or irritated with everything around them without the intellectual furniture and discipline of mind necessary to make sense of the circumstances, or facts before them.

Decision and action depend on understanding or correct interpretation of the situation. Peter Drucker, an American guru on management, says that as important as they might be, facts, or information, are not as decisive in making decisions and taking action as the values and frames of mind of the person making the decision.

Communications officer, Ministry of Education