Judges and Their Work
| DOI | 10.1177/0964663910388857 |
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| Author | Nigel G. Fielding |
| Subject Matter | Articles |
Article
Social & Legal Studies
20(1) 97–115
Judges and Their Work
ª The Author(s) 2011
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663910388857
sls.sagepub.com
Nigel G. Fielding
University of Surrey, UK
Abstract
The article discusses judicial activism in the light of research into the attitudes of English
judges, and a comparator group of US judges, towards judicial selection, judicial training
and sentencing practice. Noting commonalities and shared perspectives, it is argued that
the findings indicate enduring features of occupational culture that originate in relations
within the legal workgroup and the practical craft of judging. Against the context of highly
conventional attitudes, a conservative form of judicial activism is found in respect of
resistance to legislative and policy innovation.
Keywords
judgecraft, judges, judicial attitudes
Selection, training and sentencing have long featured in society’s concerns about the
judiciary. Efforts to make the selection process less obscure have given way to contro-
versies over means to increase minority and female representation. Training is limited
and intermittent. While judges see themselves as guardians of the public interest, the
public often criticizes sentences. Against what they may regard as ill-informed criti-
cisms, judges have sincere if well-practised rebuttals, but research documenting them
is sparse, as Genn’s 2009 Hamlyn lectures highlighted (Genn, 2009). This article
examines judicial perspectives on preparation for, and practice of, the judicial role, draw-
ing empirically on fieldwork with judges, and analytically on the literature on judgecraft
and procedural justice, to identify a conservative form of judicial activism.
As Moorhead and Cowan (2007: 316) note, ‘social scientific approaches to judges
have often looked at macro issues’. Tata (2007: 427) observes that the principal analytic
approaches under-represent practice on the ground, relying on official discourses for evi-
dence: the legal-rational position on reported judgments, the new penology on policy
Corresponding author:
Nigel G. Fielding, Department of Sociology, University of Surrey, Guildford, GU2 7XH, UK
Email: n.fielding@surrey.ac.uk
98
Social & Legal Studies 20(1)
pronouncements. The most researched topic – sentencing – largely addresses outcomes,
employing statistical analysis, simulations and econometric modelling. Such research
offers limited insight into the play of motivations and values. It cannot offer much sense
of how entry to the judiciary is motivated and negotiated, how training does or does not
address doubts and weaknesses, and how those tasked with interpreting law and making
sentencing decisions respond to criticism and controversy. This article occupies that
ground by applying judges’ views to our understanding of ‘judgecraft’ (Moorhead and
Cowan, 2007: 315) and the contemporary place of judicial activism.
Outsiders are apt to regard the judge’s role as that of balanced, neutral arbitration. In the
common law tradition, the criminal trial is regarded as a contest between parties, and the
judge, referee-like, holds the ring, seeking to ensure a ‘level playing field’ so the contest
can be decided solely on the merits of the parties’ respective cases. In legal theory, too, this
is an important doctrine, extending the idea of neutral arbitration by laying down that
the best guarantee of neutrality is for judges to exercise their role relatively passively. But
the ‘passive arbiter’ (Fuller, 1978) idea has increasingly come under empirical and
conceptual critique. This article understands the judicial role as a craft embedded in the
work of the legal profession. It will argue that judges are more active ‘shapers’ of the trial
process than the passive arbiter idea suggests. It will demonstrate that, despite the highly
conventional views of a sample of English and US judges about the judicial role and the
best means of preparation for it, there is nevertheless an orientation to correcting the
effects of what is seen as wrongheaded legislation and ill-informed public opinion.
Empirical grounds to question the passive arbiter idea are well established. Galanter et al.
(1979: 701) document trial court judges who ‘played an active entrepreneurial role in the
deployment process’. They ‘mobilize[d] an agenda of cases’ by orientation to non-
precedent and non-legal decision-making criteria, broadly, their sense of social good.
Activist judges have a ‘broad role orientation enabling the play of ‘‘non-legal’’ decision cri-
teria’ (Gibson, 1978). Understanding the routes by which judges enter the profession, and
their perspectives on the courts’ social role, illuminates their role orientation, to which
Galanter et al. (1979: 702) add a central feature of the judgecraft perspective – ‘situational
variables and institutional context’. Whereas the ‘prototypical common law trial judge . . .
applies preexisting general rules to the facts of a specific controversy in accordance with
specified procedures’ (1979: 702), disregarding any implications of outcomes for wider
public policy, Galanter et al. (1979: 706–708) highlight judges who are willing to determine
matters of policy independently, engage in doctrinal innovation, and take an active role in
case management. Their posture is less the umpire with binding decisive authority than that
of the fixer who arranges settlements the parties can agree, and who works according to
the particularity of cases rather than the general rules. This article finds qualities of the
‘prototypical common law trial judge’ in combination with a form of judicial activism.
Galanter et al. (1979: 729–730) demonstrated that taking a position in strict adherence to
legal formalism, but one that drastically differs from the wider court community and inter-
ested lay onlookers, can constitute unacceptable deviance, suggesting that situational
context can trump legal formalism. This led them to recognize a local culture of legal actors
and significant audiences sharing a set of understandings and concerns that define the appro-
priate style of playing judicial roles. Rather than negating legal formalism, they treat it as
a courtroom resource for advancing the ends on which an activist stance has been adopted.
Fielding
99
Galanter et al. (1979) attributed growing judicial activism to more policy-oriented legal
education, concerns over increasing bureaucratization of court administration, and pressure
from organized litigant groups. One of their judges tellingly remarked: ‘I gave up a lucrative
private practice to sit on the bench . . . I’m not going to sit here and stick my head in the sand’
(1979: 740, note 98). This sits well with the present study, where a sample of jurists who bear
highly conventional attitudes nevertheless testified to activist perspectives that they squarely
attributed to feeling obliged to resist a succession of ‘bad’ governments that had legislated
‘bad law’. This broader conception of judicial activism exists between the micro-level of
‘judgecraft’ and the macro-level of Galanter et al.’s ‘campaigning’ judge as political figure.
Thus located, it sees judges as self-aware role incumbents in a system that functions as a
centrifugal mechanism not only propelling cases (and the wider social issues associated
with them) into the courts but also projecting the courts’ work out to ‘the wider world of
disputing and regulating’ (Galanter, 1983: 118).
The impetus felt by the judges in the present study to resist recent legislation is the
more important against the context of Galanter’s ‘legal alchemy’(1983: 123). What hap-
pens at court sustains other kinds of ‘ordering’ far beyond its precincts. Thus, ‘law is
more capacious as a system of cultural and symbolic meanings than as a set of operative
controls. It affects us primarily through communication of symbols – by providing
threats, promises, models, persuasion, legitimacy, stigma, and so on’ (Galanter, 1983:
127). In the gradual emergence of authoritative law from ‘indigenous law’ (Galanter,
1983: 131), multiple sources of norms stand alongside each other, are loosely meshed
and sometimes in conflict. As a system with centrifugal and centripetal flow, the effects
of both are inflected in the other. Judges stand on the pivot point of indigenous and
authoritative law. Passivity and activism can take both progressive and conservative
forms in the practice of judgecraft.
Methods
This article draws on interviews with 25 English crown court judges, including six
recorders, and on group discussions between a total of 10 American State judges and
nine English crown court judges facilitated by video teleconferencing. All but one of the
judges individually interviewed was of white ethnicity, all but one was male, and most
were age 50 or older. American judges had age profiles similar to those of English judges
but were more diverse in gender and ethnicity.
The literature on interviewing elites (see Fielding, 2002) indicates that respondents
like judges and lawyers are alert to status and expect to be interviewed by individuals
of similar standing who are knowledgeable about legal work. They are averse to
standardized research instruments, preferring a conversational format. Accordingly,
semi-standardized interviews were conducted in ‘guided conversation’ mode, with topic
lists pre-circulated. Respondents received transcripts for feedback.
Methodological research also indicates that elite respondents seldom participate in
group discussions, due to busy...
To continue reading
Request your trial