Judging and Emotion

A Socio-Legal Analysis

Sharyn Roach Anleu, Kathy Mack

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781351718158
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Judging and Emotion investigates how judicial officers understand, experience, display, manage and deploy emotions in their everyday work, in light of their fundamental commitment to impartiality.

Judging and Emotion challenges the conventional assumption that emotion is inherently unpredictable, stressful or a personal quality inconsistent with impartiality. Extensive empirical research with Australian judicial officers demonstrates the ways emotion, emotional capacities and emotion work are integral to judicial practice. Judging and Emotion articulates a broader conception of emotion, as a social practice emerging from interaction, and demonstrates how judicial officers undertake emotion work and use emotion as a resource to achieve impartiality. A key insight is that institutional requirements, including conceptions of impartiality as dispassion, do not completely determine the emotion dimensions of judicial work. Through their everyday work, judicial officers construct and maintain the boundaries of an impartial judicial role which necessarily incorporates emotion and emotion work.

Building on a growing interest in emotion in law and social sciences, this book will be of considerable importance to socio-legal scholars, sociologists, the judiciary, legal practitioners and all users of the courts.

Chapter 1

Introduction

Introduction

Judging and Emotion aims to identify the place(s) of emotion in judicial work and to understand how emotion relates to the core judicial value of impartiality.¹ The central argument is that emotion and impartiality in judging and judicial work are not alternatives or necessarily in conflict; rather, emotion is integral to judicial work. The important questions are how and when emotion enters judicial work and the intersections among judging, emotion and impartiality. This approach contrasts with the typical treatment of emotion as something to be avoided, suppressed or as inevitably resulting in stress, compromising judicial performance and wellbeing.

¹A growing and broad body of scholarship addresses the role of emotion in law. See for example Abrams 2015; Abrams and Keren 2010; Amaya and Del Mar 2020; Bandes 2001; Bandes and Blumenthal 2012; Conway and Stannard 2016; Grossi 2015, 2019; Temple 2019. This book intersects with this wider research with a more specific focus on judicial experience and practice.

Judging and Emotion challenges the assumption that emotion is inherently unpredictable, harmful or a personal quality inconsistent with impartiality. Using extensive empirical data—interviews, court observations and surveys—Judging and Emotion demonstrates how judicial officers² understand, experience, display, manage and deploy emotion as part of their everyday work.

²In this book, the terms ‘judicial officer’ and ‘judiciary’ are used generically to refer to any member of the judiciary, regardless of court level or type. Within Australia, the term ‘magistrate’ refers to members of the judiciary who preside in the lower state and territory courts, except in the Northern Territory where magistrates were given the title ‘judge’ in 2016. Australian magistrates are paid judicial officers, with legal qualifications, and are appointed until a fixed retirement age. The term ‘judge’ indicates those who preside in the intermediate and higher state and territory courts and all national courts. Jurisdictions outside Australia may use other labels for their judiciary or may use these terms, but the words may not have the same meanings as in Australia.

This chapter first outlines the distinctive role of judges, their core obligation of impartiality, and the conventional model of judicial authority which rejects emotion and requires judicial officers to display an emotionless demeanour. The next section addresses the growing scholarship on emotion and the approaches of different disciplines including history, psychology and sociology. A key theme is that context shapes the different feeling rules or norms that specify appropriate emotion experience and display. The chapter then investigates emotion work and feeling rules in occupations and professions and addresses the judiciary as a distinctive profession. It concludes with an overview of the remaining chapters and some comments on researching emotion.

Judges and judging

Judicial officers embody legal authority and are the nexus between formal abstract law and the practical tasks of everyday judicial work (Roach Anleu and Mack 2017). Judges must perform their judicial role impartially and without bias in relation to any party or issue and must be independent, especially of government, in rendering decisions (Barak 2006; Council of Chief Justices of Australia and New Zealand 2017; Geyh 2013; McIntyre 2019). Judicial officers are required to apply existing law to proven facts within set procedures, ‘without fear or favour, affection or ill-will’.³ These are obligations of judicial attitude, role and practice (Lucy 2005).

³The full text of the oath used for the High Court of Australia: ‘I, [name], do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the Office of Chief Justice [or Justice] of the High Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill-will. So Help me God!’: High Court of Australia Act 1979 (Cth) s 11 and sch 1.

The conventional model of the impartial judge casts judging as without emotion, emphasising reason over feeling and legal rules over emotion. ‘Ideally, judges reach their decisions utilizing facts, evidence, and highly constrained legal criteria, while putting aside personal biases, attitudes, emotions, and other individuating factors’ (Nugent 1994: 4, also see Bybee 2010; Epstein, Landes and Posner 2013; Moran 2009, 2010).

Dichotomisation of reason and emotion has persisted across post-Enlightenment Western knowledge systems, including law (Patulny and Olson 2019; Reddy 2009; Weber 1978). Emotion is regarded as reactive, irrational, unpredictable, associated with the body not the mind, and with private sentiment rather than public obligation. This concept of emotion has:

long functioned as a catchall category for much of what law aspires to avoid or counteract: that which is subjective, irrational, prejudicial, intangible, partial, and impervious to reason (Bandes and Blumenthal 2012: 162).

These characterisations of law, reason and emotion treat emotion as incompatible with, and even potentially destructive of, impartiality and so threatening the legitimacy of judicial authority and the rule of law (see Krygier 2016; Tamanaha 2010). Maroney points out that this ‘insistence on emotionless judging—that is, on judicial dispassion—is a cultural script of unusual longevity and potency’ (2011b: 630).

Dispassion in judging has come to mean the absence of emotion in decision making and in demeanour (Goffman 1956). The incursion of emotion into judicial decision making can be a source or indicator of bias for or against a party or a claim. A judicial decision influenced by emotion, as a non-legal value or attitude, may be, or appear to be, biased and therefore illegitimate (Rachlinski and Wistrich 2017; Wistrich and Rachlinski 2017; Wistrich, Rachlinski and Guthrie 2015; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). Conduct indicating loss of impartiality can be the basis for complaint and possible discipline of a judicial officer (Appleby and Le Mire 2014; Geyh, Alfini, Lubet et al. 2013; Roach Anleu, Mack and Tutton 2014).

The cultural script of dispassion requires that judicial performance be accompanied by appropriate judicial demeanour; conventionally, this would be emotionless, impersonal, detached and affectively neutral (Bandes 2009; Bandes and Blumenthal 2012; Maroney 2011a, 2011b). The judicial oath, ethics guidelines, codes of judicial conduct, appeal cases and disciplinary proceedings convey expectations relating to impartiality, judicial dispassion, emotion and its expression. The frequently expressed obligation for judicial officers to be courteous, patient and maintain decorum necessarily implies emotion and its management. A judicial officer’s experience, management and expression of emotion, or lack thereof, is sometimes framed as judicial temperament (Maroney 2020). Norms about judging, emotion and emotion display are also communicated through occupational socialisation such as professional training, continuing education and formal and informal interaction among judicial officers (Wharton 2009).

Legal requirements that prescribe emotionless judging and demeanour, along with the cultural script of judicial dispassion, are not the only forces influencing judicial practice. In common law adversarial systems, institutional and structural factors include the delineated judicial role as a passive arbiter and guarantees of judicial independence (Geyh 2014). Legal language, prescribed procedures and courthouse or courtroom design express ideas about judicial authority, impartiality, justice and the rule of law and so have significant symbolic and practical impact on judicial work (Mulcahy 2010; Mulcahy and Rowden 2020).

An extreme positivist conception of judging and legal authority constructs judges as operating only according to formal roles within the court and legal system and cannot readily accommodate a view of the judge as a human or social actor. Despite extensive challenge, from the legal realists in the early twentieth century and continuing through the critical legal studies movement, critical race theorists and feminist legal scholarship, the conventional formalist construction remains a powerful image and benchmark (Davies, M. 2017; Gey and Rossi 2005; Goodman 2013; Green and Roiphe 2008; Tamanaha 2010).

Nonetheless, judicial practice itself constitutes the institutional structure and legal values, including impartiality. Structures both empower and constrain social action and the capacity for change or routinisation. In certain circumstances, human agents can (or are forced to) improvise or innovate in structurally shaped ways that can significantly reconfigure the very structures that constitute them (Sewell 1992). This conception of structure and action as mutually constitutive and transformative can be applied to judging and emotion. To conceive of judicial officers as human agents ‘implies that those agents are capable of putting their structurally formed capacities to work in creative or innovative ways’ (Sewell 1992: 4). This means that judicial officers may have the capacity to alter or transform the social-legal relations of which they are a part. Recognising that judicial work is more interrelational, interactional and social than anticipated by the conventional image of judicial authority opens the possibility of investigating emotion and judging. This in turns allows scope to transform the conventional model of the judge.

Experience and display of emotion are embedded in the physical settings and institutional obligations in which judicial officers work—courtrooms, legal procedure, legal requirements—creating a constellation of relationships and interactions. While these structures construct and constrain the judiciary and judging, they also create opportunities and expectations for experience, expression and management of emotion. Despite the formal disavowal of emotion and attempts to erase and contain emotion, emotions are increasingly recognised as essential, though not uncontroversial, for judicial practice in everyday work (Bergman Blix and Wettergren 2018; Maroney 2011a, 2019; Roach Anleu and Mack 2013).

Judging and Emotion examines the interplay among impartiality, judicial authority and emotion in the social and institutional context of judicial work. In order to do this, it is first necessary to map out the conception of emotion that the book adopts and the related concept of emotion work.

Conceptualising emotion

Scholarship on emotion is vast, multidisciplinary and gr...