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).
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.