The reason judges (and justices!) are reticent about granting bail is what Wittgenstein so aptly described as the pathology of language: we are beguiled by our own terms. The accepted doctrine is that in those cases where bail is not available as a matter of right (another anomaly in our legal system!), the judge conducts a bail hearing to determine whether evidence of guilt is “strong”, and then exercises judicial discretion by deciding either to grant or to deny bail. What many of our robed judicial oracles take to be the logical entailment of this proposition is that the grant of bail means that evidence of guilt is “not strong”—the less logically sensitive will readily say “weak”—and that is worrisome, because it is apparently a pre-judgment of the case. After having found evidence of guilt wanting and therefore granting bail, it looks like— to many on the dais—the court has precluded itself from convicting the accused, otherwise it contradicts itself if not logically, at least performatively!
To be fair, we will have to remind ourselves that the Supreme Court has repeatedly distinguished between a finding that the evidence of guilt was “not strong” for purposes of the grant of bail and a finding of insufficiency of evidence resulting in an acquittal. But the disquisitions of the High Court on this point many times distinguish without making a difference! And the lure of exercising discretion on the basis of what are taken to be the entailments of “not strong” is almost always irresistible, hence the perpetuation not only of an illogicality but also of rank injustice!
If we did away with the deceptive standard of “strong evidence” and opted to be more reasonable and less dependent on formulary, we might be fairer—and, at least for Rawls, more just! I propose that a magistrate ask herself this question when deciding the issue of the grant of bail: On the basis of what the prosecution has thus far presented in court and of other considerations such as the risk of flight or evasion in proportion to the gravity or severity (or lack of it) of the offense charged, is it fair, is it reasonable to deny an accused some of the most fundamental rights guaranteed every person by the Constitution? Put this way, the terms themselves will assure the judge that there is absolutely no contradiction, logical or performative, in ruling: “At this stage, given the premium that the Constitution places on fundamental rights, I grant you bail, but there is nothing to preclude me from finding you guilty, should the evidence so warrant.”
I am advocating a higher degree of reflection, a greater role for thoughtfulness. I am inveighing against doctrinaire postures in the exercise of judicial functions, especially as they impinge on fundamental rights, and the close-to-mechanical dependence and citation of formulary canonized by hardly anything more than repetition! It does make the task of a judge more difficult, but that is exactly why judges are appointed—to judge. It is no mere coincidence that judicare meant, for Scholastics, the act of cogitation by which intellection reaches perfection. Veritas est in intellectu, componente et dividente...Truth is in the composing and dividing intellect (‘composing’ and ‘dividing’ being descriptive of predication that is at the heart of judgment). So wrote Thomas Aquinas, and if our judges would take as the first norm of their judgments the perfection of intellection (and not the exactitude of the regurgitation of aphorisms), we probably would arrive at fairer results!