"If the judges are not restrained by the law, what are they restrained by, which every autocrat on earth has not claimed to be restrained by?"

In praising the judgment in the Jackson Case, despite its technical irregularity, [Judge Parry] speaks of a fine example of our judgemade law, and says: "But that is one of the sane and healthy attributes of our judicial system. There comes a breaking-point where a great judge recognizes that the precedents in the books are obsolete, and what has to be stated is the justice of the case according to the now existing standard of human righteousness." Now it is surely as plain as a pikestaff that this doctrine makes a small number of very wealthy old gentlemen in wigs absolute despots over the whole commonwealth. The Emperor of China was supposed to state the justice of the case. The Sultan of the Indies was supposed to judge by the existing standard of human righteousness. If the judges are not restrained by the law, what are they restrained by, which every autocrat on earth has not claimed to be restrained by?

Now there is certainly a case for personal and arbitrary government; and as there are good sultans, so there are good judges. I should not be afraid to appear before Judge Parry (if I may presume to imagine myself innocent) though he were surrounded with janissaries in a secret divan, or delivering dooms under an oak tree in a wild, prehistoric forest. I should not mind his having the power to skin me or boil me in oil; for I feel sure he would "recognize that these precedents were obsolete" and not do it. But it is by no means true that the confidence I should feel in Judge Parry would be extended to any judge who talked about obsolete precedents and human righteousness. Quite the contrary, if anything. I trust him because he often takes the side of the under-dog. I should not trust a man who always took the side of the opinion which happened to be topdog....There is, let us suppose, an old statute that certain prisoners may be tortured for evidence; but the judges disregard it, and Judge Parry is satisfied. But there are three very vital reasons why he should not be satisfied. First, it encourages legislators to be lazy and leave a bad statute they ought to repeal. Second, they leave it so that it can be resharpened in some reaction or panic against particular people, who will be tortured. And third, and most important of all, the same judge who has said that prisoners must not be tortured for evidence may say some fine morning that prisoners may be vivisected for scientific inquiry; and he may have the same reason for saying the one as the other, the simple reason that such talk is fashionable in his set. And the set is very small and very rich; we are dealing strictly with fashion and not even, in any large sense, with public opinion. The standards of that world are often special and sometimes rather secretive. Judge Parry even quotes a "paradox" of Lord Reading to the effect that persons like himself should administer justice and not law. Law is narrow and national, and might possibly lead a British Minister to look no further than the British Parliament as an appropriate place for telling the truth. But justice, being international and surveying the world from China to Peru, perceives without difficulty the office of the one particular Parisian newspaper which has the right to insist on an explanation.

-The Uses of Diversity (1921)