YEJIDE GBENGA-OGUNDARE in this piece examines legal acts usually overlooked by people as mannerism but are traditions in legal practice and are symbolic.
The legal profession is one with flair, tradition and personality. Indeed, only people in the legal profession are considered learned and there are codes and traditions that apply in the legal circle especially in hallowed chambers where the business of law is conducted. Whoever appears before a court, whether as a legal practitioner or litigant, must compulsorily follow some codes and laid down behavioural precepts.
This tradition, which evolves from the practice in ancient Greece where law originated, has created a cult like personality for the profession. Digital evolution while creating changes has not in any way tampered with the traditions.
Aside the expected tradition of language and behaviour, there are many aspects of law that look like simple mannerisms but are actually symbolic; such include the use of black cap by judges on some occasions in some climes and breaking the pen especially after passing a death sentence. To many people, these are the flairs of the profession, but they are actually legal traditions with significant meanings.
One of the most significant is the attitude of judges before, during and after giving a capital punishment. Passing a death sentence has its peculiar traditions. In times past, sentencing at the higher courts of the Old Bailey was surrounded with ritual in an attempt to display the majesty of the law; the judge is presented with a pair of white gloves when a death sentence had to be passed and the presiding judge would put on a black cap, acting out an orchestrated piece of theatre that served as the “climactic emotional point of the criminal law” according to Martin Madan in a pamphlet published in 1785.
The black cap is quite synonymous, it is a square-shaped cap special hat worn by judges in England on important occasions especially when a judge wants to pass a death sentence. A black cap worn by a judge in court means that the verdict was going to be serious and it is a symbol of the judge’s authority and power in the courtroom.
“The black cap is a significant part of the English judicial system. It represents the seriousness and gravity of the situation, especially when a death sentence is being given. And once a litigant saw the black cap, he knows his fate is sealed. That is what we learnt as students,” Tofunmi Ajia, a lawyer said.
And while breaking the pen or the nib of the pen after passing a death sentence is a major pronounced tradition and long-standing one among judges in India. This practice carries deep symbolism and historical roots, offering a glimpse into the gravity and responsibility associated with the death penalty.
The tradition can be traced back to the early 16th to the mid-18th century and a period of time known as the Mughal Empire in India; the tradition of breaking the nib after passing a death sentence in India is a powerful reminder of the solemn responsibility judges hold when deciding the fate of an individual. This symbolic gesture, rooted in historical practice, emphasizes the gravity, irrevocability and unique nature of death sentences. As such, it continues to hold relevance in contemporary judicial practice, reminding judges and society alike of the profound implications of such decisions.
The Mughal Emperor first started the practice, around this time; the Mughal Emperor would break the quill he used to sign death sentences. This approach was later adopted by British justices in colonial India and extended after India attained independence and it continued long after India’s independence from the UK and was adopted by many colonies, making it widespread.
And while the tradition of breaking the nib may seem archaic to some, it continues to be practiced by some judges in India as a reminder of the solemnity and gravity of their duty. It serves as a poignant symbol of the emotional and ethical weight carried by those who must decide the fate of another human being.
However, though the practice is widespread globally, it is not codified by law but many judges continue to do it voluntarily. And while many countries have revoked death penalties as punishment for crimes for humanity sake with the UK abolishing death penalty it in 1998, about 55 countries still enforce them.
“The tradition of breaking a pen after a death sentence among judges across the world continues to have deep meaning; it is not just a tradition to create paparazzi or add colour. It is deeply historic and symbolic. When we were in school, we heard judges change their robe or turn them inside out to pass death sentence but I haven’t seen that since I started practice 10 years ago.
“But that of pen breaking is indeed entrenched. Judges write down their rulings and sentencing before giving it out, but whenever a judge gives a death sentence to an accused person, he breaks his pen and there are reasons for this,” said Winifred Grace, a lawyer.
Also speaking, Aloma Williams, a legal practitioner, said: “Yes, it is a tradition that has been around for so long but the truth is that there is no requirement for judges to break their pen after passing such a sentence; it’s just an entrenched tradition that some uphold and is likely to continue as long as death penalty exists and is upheld in some countries. And though many people don’t know about it, many judges may still take part in the pen-breaking tradition. That it is not common knowledge doesn’t mean it is not in existence or it doesn’t have meaning.”
Symbolic reasons judges break pen after passing a sentence
There are specific symbolic reasons for pen breaking by judges after passing a death sentence; it depicts the special circumstances of use and it broken after its use to signify that it has served its purpose. The pen was used to take a life and can’t be used for any other purpose. Death sentences are special because they aren’t given out every day.
“The truth is that death sentence is final in nature and once it has been passed, the pen has done its assignment and it is over. It is said that death sentences are rare and if a pen has been used to take away someone’s life, it should never be used again for other purposes. The broken nib ultimately signifies that the pen has served its purpose and will not be used again for the same purpose. It emphasizes the unique nature of death sentences, which are not to be treated as commonplace decisions,” Aloma stated.
Breaking the pen is also the only emotion that is betrayed by the judge for passing a judgment, instructing that a life should be taken. It means the judge feels solemn about passing a death sentence and is a symbolic act that emphasises the judge’s emotional weight and responsibility in deciding someone’s fate. It represents the judge’s heavy heart in passing such a grave sentence and underscores the immense responsibility and emotional burden associated with deciding someone’s fate.
One of the most important significance in breaking of the pen is the representation of the severity of the sentence and the judge’s ‘heavy heart’ due to the ‘immense responsibility and emotional burden associated with deciding someone’s fate.
The act also symbolises the irrevocability of the action taken by the judge through his ruling; breaking the pen conveys the finality and irrevocability of a death sentence as it cannot be reversed once imposed.
It is also symbolic of the fact that by breaking the nib from the pen, the pen can no longer be used to write, symbolising the finality of a death sentence and how the judge themselves cannot suddenly choose to reverse it.
“Once the nib is broken, it can no longer be used to write. This symbolises the finality and irrevocability of a death sentence, as it cannot be undone once it has been passed,” Winifred explained.
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