By The Honourable Justice Peter Quinlan
This paper was presented by the Honourable Justice Peter Quinlan, Chief Justice of Western Australia at the Global Summit of Hellenic Lawyers, Athens, Hellas on 9 July 2025.
On 21 May 2025, the Scottish born philosopher Alasdair MacIntyre died at the age of 96 years in his adopted homeland in South Bend, Indiana. MacIntyre’s life work, particularly from the time of his 1981 treatise, After Virtue, was focussed on a conscious revival of Aristotelian virtue ethics.
Perhaps more than any other contemporary philosopher, it was MacIntyre who sought a return to virtue ethics as an antidote to what he described as the shrill tone of contemporary moral debate. And in that endeavour, MacIntyre identified Aristotle as the protagonist against whom he matched the voices of liberal modernity.
MacIntyre’s work and his belief that Aristotelian tradition could be restated in a way that restores intelligibility and rationality to our social commitments, provides a timely stepping off point for this afternoon’s topic: Challenges to judicial legitimacy: The Impact of Social Media and AI on Public Trust in the Judiciary and Government Institutions.
In the first place, as I will come to, MacIntyre’s diagnosis of the parlous state of moral disagreement in our contemporary world explains much of the impact of social media on trust in the judiciary and other institutions, including the legal profession, and the ongoing threat that social media poses to those institutions. In the second place, of course, our conference meets in the city in which Aristotle produced all his major work, including the Nicomachean Ethics.
It is notable that, unlike his tutor Plato’s Republic, Aristotle’s Ethics does not explicitly deal with the quality of trust in any systematic way. Trust, or trustworthiness, does not appear as one of the virtues discussed at length in the Ethics. And when trust is referred to, it is not in the sense in which we use ‘public trust’, the quality upon which judicial legitimacy depends, but on the relationship of trust that exists between persons, and in particular between friends.
Friendship, of course, Aristotle identified as ‘a kind of virtue and necessary for living’. And the perfect form of friendship that Aristotle identified was that between those who desire the good of the friend for the friend’s sake and not for reasons of utility or pleasure. In was in that context that Aristotle invoked the notion of trust:
That such friendships are rare is natural, because men of this kind of few. And in addition they need time and intimacy; for as the saying goes, you cannot get to know each other until you have eaten of the proverbial quantity of salt together. Nor can one man accept another, or the two become friends, until each has proved to the other that he is worthy of love and so has won his trust. Those who are quick to make friendly advances to each other have the desire to be friends, but they are not unless they are worthy of love and know it.
Trust in this context, then, is something that is ‘won’, requires time and intimacy, and is the product of affection.
But what of ‘public trust’, that which is reposed in an institution or a profession, and which is necessary for the health of those institutions? How does it compare to the ‘trust’ that exists between friends and, how does Aristotle’s necessary relationship of ‘friendship’ compare with the relationship between the citizen and the professional judge or lawyer?
There are, in this regard, a number of important similarities.
The first, most obviously, is that both relationships are characterised by those in the relationship willing of the good of the other for the other’s sake. Recall Aristotle’s description of perfect friendship:
And it is those who desire the good of their friends for the friends’ sake that are most truly friends, because each loves the other for what he is, and not for any incidental quality.
This, I am sure you will recognise, precisely captures one essential aspect of the professional relationship between the lawyer and the client, namely that it is a fiduciary relationship. That is, that the lawyer’s duty is to act in the interests of the client and not in the lawyer’s own interest:
The distinguishing characteristic of a fiduciary relationship, then, is that its essence, or purpose, is to serve exclusively the interests of a person or group of persons. To put the matter negatively, it is a relationship in which the parties are not free to pursue their separate interests.
So, the commitment to the good of the other, as other, is the distinguishing characteristic of both Aristotle’s conception of perfect friendship and of the professional notion of a fiduciary relationship.
The same applies to the judicial office. It is not often that we conceive of the judiciary and judicial officers as having fiduciary duties (no doubt because they are not enforceable as such). But, when it comes to the essential nature of the judicial office, that is precisely what the duties of a judicial officer are. It is in the very nature of the judicial office that, in exercising judicial power, the judicial officer is not free to pursue their own separate interests but must act only as the law requires. Indeed, in the case of a judicial officer the relationship between the repository of power and the person in relation to whom it may be exercised is even more pronounced in its fiduciary character. That is because the power exercised by the judicial officer, in relation to which he or she is not free to pursue their separate interests, is not (at least directly) freely and voluntarily given by the subject of that power, as in the case of the power exercised by a lawyer. You can choose to enter into a relationship with your lawyer; you cannot choose your judge.
In either case, we can see that the judge or the lawyer must exercise their powers, not for their own benefit, but for the benefit of another person or group. And, as in the case, of Aristotle’s perfect friendship, the existence of that relationship, if it is to be legitimate, depends upon trust being reposed in the judge or the lawyer that he or she will actually exercise their powers in that way.
It is here, however, that public trust, the trust that is reposed in a judge or a lawyer, differs from the trust that is reposed in a friend (and which indeed is the foundation of the relationship of friendship). And why it is that the notion of trust in a judge or a lawyer is inseparable from, and indeed synonymous with, trust in the judiciary or the legal profession as a whole. Trust in the judiciary, the legal profession or any other governmental body is necessarily institutional.
Professor Robert Sokolowski captured this idea in the following way:
The relationship between professional and client is a fiduciary relationship. The client trusts the professional and entrusts himself or herself – not just his or her possessions – to the professional. The professional is presented as trustworthy not primarily in the way a friend is found to be faithful, by having proved himself or herself in many situations, but by having been certified as a professional. There is an elegant anonymity to professional trustworthiness; if I get sick away from home and must go to the emergency room of a hospital, I can in principle trust doctors and nurses I have never met before. I enter into a fiduciary relationship with them because they are presented as members of the medical profession, persons who are certified by the profession and who can, prima facie, be taken as willing to abide by its norms. I do not have exactly the same kind of trust if my car breaks down somewhere away from home; I am delivered over rather to the personal honesty, trustworthiness, and competence of the local mechanic. It is as though I had to find a temporary friend rather than being able to appeal to a professional.
As Sokolowski makes clear, the ‘elegant anonymity of professional trustworthiness’ is precisely the opposite of the trustworthiness of a friend, which is ‘won’ through time, intimacy and affection. If I can appeal to a professional, I do not need to find a ‘temporary friend’. That is because, whatever trust I repose in the professional must be reposed in them precisely other than by reason of their personal honesty, trustworthiness, and competence. I must be able to repose trust in the judge (or the lawyer) by reason of, and only by reason of, their forming part of an institution (or a profession).
This ‘elegant anonymity’ is manifest in the oath by which an individual member of an institution (or profession) incorporates themselves into that institution (or profession) itself. While the trustworthiness of a friend is ‘won’ through time, intimacy and affection, for example, the judge explicitly swears or affirms that he or she ‘will do right to all manner of people, according to law, without fear or favour, affection or ill will’.
Put another way, while the trustworthiness of a friend is ‘won’ through, and depends upon, the friend’s subjectivity – his or her capacity for intimacy and affection – by contrast the public trustworthiness of the judge or lawyer is dependent upon the judge or the lawyer’s objectivity – his or her capacity not to act according to affection or ill-will.
This highlights an aspect of both the rule of law and judicial legitimacy that is so obvious that it is sometimes overlooked: namely, that laws are objective standards. In a society that observes the rule of law, the law exists logically prior to, and conceptually outside, the mind of a single individual. Laws are, of course, as Professor Stone put it, ‘socially derivative and non-autonomous’, but once made, they are objective in character. This is, of course, the whole point: under the rule of law, we are ruled by objective laws and not by the whims or preferences of persons.
Of course, those objective laws must nevertheless be executed and applied by human beings. The law is, after all, and above all, a human institution. Nevertheless, the rule of law presupposes that laws will be interpreted and applied objectively. It presupposes that the objective interpretation and application of the law is something of which human beings are capable. The particular human beings that the rule of law presupposes are capable of doing this, of course, are the judiciary and, more broadly, the legal profession. The rule of law, therefore, presupposes that there can exist people who are able to apply the law free from the vagaries of personal whim or influence.
For this reason, public trust in the judiciary requires (at least) two prerequisites. First, that the persons appointed to judicial office are, in fact, capable of objectivity and adherence to objective laws. In other words, that objectivity is not, in the end, an illusion but a real human faculty. We, as judges and lawyers, of course take this as axiomatic, notwithstanding a good deal of postmodern philosophical effort to the contrary.
The second prerequisite to that public trust, however, is not only that we (judges and lawyers) take the human faculty or capacity for objectivity as axiomatic but that the public too recognise that capacity for objectivity and have confidence that the institution of the judiciary can and does adhere to it.
It is here that I return to MacIntyre’s diagnosis of the state of moral disagreement in our world and the impact of social media on trust in the judiciary and other institutions.
Early in After Virtue, MacIntyre observed in relation to the state of moral disagreement in our world that:
The most striking feature of contemporary moral utterance is that so much of it is used to express disagreements; and the most striking feature of the debates in which these disagreements are expressed is their interminable character. I do not mean by this just that such debates go on and on and on – although they do – but also that they apparently can find no terminus.
MacIntyre identified much of the cause of this predicament as coming from the philosophical standpoint known as emotivism. As he described it:
Emotivism is the doctrine that all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character. … [M]oral judgments, being expressions of attitude or feeling, are neither true nor false; and agreement in moral judgment is not to be secured by any rational method, for there are none. It is to be secured, if at all, by producing certain non-rational effects on the emotions or attitudes of those who disagree with one. We use moral judgments not only to express our own feelings and attitudes, but also precisely to produce such effects in others.
Emotivism, as a theory of morals or other value judgments, is obviously contrary to the first of the prerequisites I identified as necessary for trust in the judiciary: namely that human beings are capable of objectivity and that rational objectivity is a real human faculty. As I have said, we judges and lawyers take the human capacity for objectivity as axiomatic. At least formally, therefore, we take it as axiomatic that emotivism is wrong.
As a broader cultural phenomenon, however, I would suggest (following MacIntyre) that emotivism is all too real. As MacIntyre put it:
To a large degree people now think, talk and act as if emotivism were true, no matter what their avowed theoretical standpoint may be. Emotivism has become embodied in our culture.
MacIntyre made this observation in 1981. If it was true 44 years ago, how much more so now has the advent of social media, and the curation of social media content by artificial intelligence, embedded emotivism into our culture. Indeed, together with what Charles Taylor described as ‘expressive individualism’, social media has taken emotivism to entirely new levels, where an understanding of evaluative judgments as merely expressions of personal preference, now is the avowed theoretical standpoint of most of its users.
Any passing knowledge of social media reveals this to be the case. Evaluative judgments – and indeed assertions of fact or material reality – on social media are almost always expressed in highly personalised terms and as proceeding from one’s own inner experience. Indeed, we often see, in online ‘discourse’, that the application of an external standard (any external standard) is regarded as an affront to, and an attack upon, one’s personal integrity or well-being. To a greater or a lesser degree, this is the culture in which we all operate and to which we all conform.
To be clear it is not, just, that misinformation or outright lies are commonplace on social media, and that such content appears alongside information that might otherwise be thought to be accurate or considered. The impact is much deeper than that: the very medium of social media and other forms of online ‘debate’ or ‘communication’, is specifically not intended to engage in rational discourse or dialogue. Indeed, ‘content’ on social media is in large measure not ‘communication’ at all, in the sense that communication is a process of ‘sharing’ one’s portion of reality with the other. On the contrary, the purpose of a social media post is not to communicate (or dialogue) but to display. And specifically to display one’s own preferences, feelings or emotions as a mark of personal identity and integrity.
In this sense ‘communication’ via social media, accentuates what Plato regarded as the limitations of the written word, when compared to oral dialogue. In Phaedrus, Plato had Socrates describe those limitations in the following way:
You know, Phaedrus, that is the strange thing about writing, which makes it truly correspond to painting. The painter’s products stand before us as though they were alive. But if you question them, they maintain a most majestic silence. It is the same with written words. They seem to talk to you as though they were intelligent, but if you ask them anything about what they say from a desire to be instructed they go on telling just the same thing forever.
If the written word just goes on telling the same thing forever, how much more so social media, which does not just go on telling the same thing forever but positively screams it.
Again, anyone with a passing knowledge of social media will be familiar with this phenomenon: interlocutors on social media do not persuade, debate or even argue with one another; they ‘destroy’, ‘demolish’ or ‘defeat’ one another. This absence of true rational exchange, I want to suggest, however, is not the problem here. It is, rather, the symptom. It is a symptom of tacit emotivism the notion that all evaluative judgments are merely expressions of preference, feeling or attitude. And, with that, the assumption that all evaluative judgments are radically and essentially subjective. Social media did not create this phenomenon; but it has, for all intents and purposes, universalised it.
And it is this radical subjectivity, I want to suggest, that gives rise to the real threat to the trust in the judiciary wrought by social media. Because a culture which maintains that all evaluative judgments are expressions of subjective personal preference or attitude, cannot accept that some evaluative judgments are in fact the application of objective laws and not the whims or preference of individual persons.
Again, the problem is not simply that social media promotes the view that individual judges are acting in accordance with their personal preferences, attitude or feelings. The problem is that the very medium of social media promotes the view that they are incapable of doing otherwise. Namely that a significant part of the community now assumes that it could be no other way: ‘Of course the judge decided the case in accordance with his or her own preferences, attitudes and feelings! After all, that is true of all evaluative decisions. Why should a judge be any different.‘
So much for MacIntyre’s diagnosis of our predicament. Is there any way out of that predicament? No doubt the impact of social media and artificial intelligence on our culture is broader than the currently waning trust in the judiciary and other institutions; and so any solutions must ultimately go deeper than the institutions themselves can achieve. There are, nevertheless, some things that we can do. And to that end MacIntyre’s revival of Aristotelian virtue ethics has something to teach, or at least remind, us.
Part of MacIntyre’s central thesis, was the fact that, whether we like it or not, each of us is the bearer of a tradition, which he defined as ‘a historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition’. And the goods internal to that tradition, in turn, serve to define the virtues necessary for both sustaining the tradition itself and the individual lives that exist as part of it.
As MacIntyre put it:
Lack of justice, lack of truthfulness, lack of courage, lack of the relevant intellectual virtues – these corrupt traditions, just as they do those institutions and practices which derive their life from the traditions of which they are the contemporary embodiments. To recognize this is of course also to recognize the existence of an additional virtue, one whose importance is perhaps most obvious when it is least present, the virtue of having an adequate sense of the traditions to which one belongs or which confront one.
As judges and lawyers, we are bearers of a particular tradition, which sets its face, no doubt, against the emotivism of our age and for which we are chiefly responsible for upholding. We must, therefore, have an adequate sense of the traditions to which we belong and those which confront us.
In this respect, we, judges and lawyers, should not think of ourselves as immune from the emotivism and expressive individualism that characterise our age. These phenomena, which increasingly lead to the mark of personal identity and integrity being a person’s display of their own preferences, affect us as much as they do those around us, particularly if our display is likely to garner approval or adulation.
Such display, however, no matter how much the subject of approval or adulation, is itself corrosive of the trust upon which the legitimacy of the judiciary depends. Because, as I observed earlier, trust in the judiciary, the legal profession or any other governmental body is necessarily institutional and not personal. And just as the trust to which each individual judge can lay claim is derived from that institutional trust, so too it is necessary for the individual judge to recognise that he or she is responsible to maintain that trust precisely as institutional trust, rather than personal trust.
Paradoxically then, insofar as we make a display of our own preferences and attitudes as a mark of our integrity or professional trustworthiness, we undermine the institutional trust due to the judiciary as a whole. We feed into the corrosive notion that all evaluative judgments are merely expressions of subjective personal preference and that the outcomes of legal proceedings are, in fact, the expression of each individual judge’s subjective preferences.
This is why, I would suggest, the ‘hero judge’ can be so dangerous to the judiciary as a whole, and indeed, in the long term might be more dangerous than the ‘bad’ judge. The ‘bad’ or ‘corrupt’ judge is clearly an exception; a betrayal of the public trust reposed in the institution of the judiciary. The ‘hero’ judge, however, sets himself or herself up as a rival to that institutional integrity and so, even if subtly so, serves only to undermine it.
As Gageler CJ recently described the constraints upon individual members of a court: the ‘foundational conception is that the function of declaring the law is vested in the Court rather than in the Justices who from time to time comprise the Court’. This constraint, as his Honour described it, is an ‘institutional imperative’. I would only add that this institutional imperative extends to each and every aspect of the judicial function. The judicial function, and all judicial power, is vested in and exercised by the court rather than the judge who from time to time comprises that court. We should be careful not to pretend that it is otherwise.
This is not to say that personal integrity, and personal adherence to the virtues inherent in our legal traditions, are not essential to the discharge of judicial office or membership of the legal profession. Of course they are. As MacIntyre observed, the absence of those virtues not only corrupts traditions, but it also corrupts the institutions that derive their life from those traditions.
Personal integrity is therefore essential. But it is precisely as institutional integrity that personal integrity must be manifest; not over against it. To use Professor Sokolowski’s phrase, we must at all times seek to maintain the ‘elegant anonymity’ of our trustworthiness.
Another aspect of MacIntyre’s conception of a ‘tradition’ may also provide some focus for our response to the other technological change (or revolution) that we face: artificial intelligence. MacIntyre’s conception of tradition, to be sure, did not conceive of tradition as a form of ‘antiquarian conservatism’. As he said:
It is rather the case that an adequate sense of tradition manifests itself in a grasp of those future possibilities which the past has made available to the present. Living traditions, just because they continue a not-yet-completed narrative, confront a future whose determinant and determinable character, so far is it possesses any, derives from the past.
What might we, as inheritors of our legal traditions, draw from the past that may assist us in our response to artificial intelligence, and the use of artificial intelligence in the legal process?
At least for those of us from the common law tradition, the answer may be found in the common law’s strong preference for orality: Its preference for both oral evidence and oral advocacy. While the use of written evidence and written advocacy has significantly expanded in recent decades, and epitaphs are occasionally written for its ultimate demise, the oral tradition of the common law refuses to die.
Indeed, in some quarters there has been a return to greater orality. In my own jurisdiction, for example, a procedure whereby written statements constituted the evidence of witnesses in civil cases that had been in place for several years has been replaced with a return to oral evidence. Significantly, that change was a consequence of judicial disquiet about the authenticity of written evidence, in which the reliability of written material could no longer be assumed to reflect the words and recollections of witnesses themselves. In other words, the authentically human element in the judicial process was in danger of being lost and the remedy was to be found in a return to the tradition’s past.
In the field of advocacy, the common law’s traditional preference for orality has related more to intelligibility and immediacy. To paraphrase Socrates’ complaint to Phaedrus referred to earlier, when you ask written submissions ‘anything about what they say from a desire to be instructed they go on telling just the same thing forever’. It is, perhaps, for this reason that I personally have found that an ounce of oral dialogue is worth a pound of written advocacy. The greater intelligibility and immediacy of oral advocacy, again serves to emphasise the interpersonal nature of the judicial process.
Each of these concerns reflected in our legal traditions – namely authenticity, intelligibility and immediacy – then, derive from their essentially human and personal character. They make clear that the objectivity upon which the rule of law rests depends upon human agency for its expression. And also, that to be impartial or objective does not mean to be impersonal. On the contrary, it is precisely in the exchange between persons that true objectivity is to be found.
While the challenges posed by artificial intelligence to the legal process are no doubt different to those of the past, and must be met with new solutions, the underlying concerns are the same: authenticity, intelligibility and immediacy. Our legal tradition has dealt with these concerns before and has developed rules designed to ensure that the human character of the law and the legal process is retained and preserved. When new technologies have produced new forms of evidence, for example, the law has adopted an incremental approach to the acceptance of those new technologies, which has always ultimately required authentication by human beings before it can be relied upon. Once established, the reliability of new technologies, such as photographs, sound recordings and DNA evidence, have been more readily relied upon without the need in every case for human superintendence or authentication. But always with the capacity for that superintendence or authentication.
No doubt, as I have said, artificial intelligence introduces new challenges. Its capacity to mimic human speech, and even human reasoning, are such that its essential artificiality may be more difficult to recognise. In many respects it is that difficulty to distinguish one from the other that leads to the distrust we instinctively feel over artificial intelligence. Distinguishing between the artificial and the real, however, has always been the role of the legal system, and of the institution of the judiciary. Indeed, as I have earlier proposed, it is the capacity to distinguish between the real and the unreal, the capacity for objectivity, upon which trust in the judiciary ultimately rests.
In the end it may be that, should we as a judiciary and as a legal profession rise to the challenge of artificial intelligence by maintaining and exercising our capacity for objectivity, and our human capacity for distinguishing between the real and the artificial, it will be precisely there that our institutional trustworthiness, and the trust upon which our legitimacy rests, may be renewed and in which it may be preserved.
