Judicial independence: The master narrative in sentencing practice
| Published date | 01 April 2021 |
| DOI | 10.1177/1748895819842940 |
| Date | 01 April 2021 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895819842940
Criminology & Criminal Justice
2021, Vol. 21(2) 133 –150
© The Author(s) 2019
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DOI: 10.1177/1748895819842940
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Judicial independence:
The master narrative in
sentencing practice
Fiona Jamieson
University of Edinburgh, UK
Abstract
This article draws on biographical narrative accounts of retired Scottish judges to provide insight
about the operation of judicial independence in the routine practice of criminal justice. This
oblique and often reified legal concept is given new meanings and understandings through the
lived experiences of retired judicial actors, demonstrating its role as the ‘master narrative’ of the
judiciary in their routine sentencing work. This research points to some of the adaptive judicial
strategies necessary for the maintenance and reinforcement of the concept in the context of
the everyday challenges of sentencing practice. It is argued that although judicial independence
represents an aspirational conception of judicial work, this symbolic value also carries important
meanings and has material effects in sentencing practice. Moreover, the boundaries of the judicial
role in daily criminal practice may be less sharply defined than strong ‘Olympian’ interpretations
of judicial independence would otherwise suggest.
Keywords
Criminal justice, judicial independence, master narrative, narrative research, sentencing
Introduction
With a long history in legal and political thought, the concept of judicial independence
remains central to the functioning of democratic legal systems today. This core rule of
law concept holds the promise not only of an impartial institution which is constitution-
ally separate from other branches of government but also the commitment of individual
judges to carrying out their duties ‘without fear or favour, affection or ill will’ (as the
Scottish judicial oath puts it), thus offering a guarantee of equality for all people before
the law.1 Embodying important political and constitutional values and ideals, the concept
Corresponding author:
Fiona Jamieson, Senior Teaching Fellow, University of Edinburgh, School of Law, Old College, South Bridge,
Edinburgh, EH8 9YL, UK.
Email: fiona.jamieson@ed.ac.uk
842940CRJ0010.1177/1748895819842940Criminology & Criminal JusticeJamieson
research-article2019
Article
134 Criminology & Criminal Justice 21(2)
has generated extensive legal and doctrinal scholarship largely focused on higher consti-
tutional and appeal courts and mostly directed, in the UK, to the institutional arrange-
ments which shape and structure the work of the judiciary (Shetreet and Turenne, 2013)
and in the USA, towards policy debates (Burbank and Friedman, 2002).
However, judicial independence has been the subject of very little empirical study in
any jurisdiction regarding its meaning, operation and effects in criminal justice practice.
Downes’ (1988) influential comparative study of penal culture identified judicial inde-
pendence as a core element, suggesting also no necessary conflict between judicial
independence and a collaborative professional culture of tolerance. Lacey (2008)
observes that the nature and extent of judicial insularity is an important institutional
variable in the ways in which systems of criminal justice respond to calls for increased
penal severity. In more recent work, the concept continues to operate somewhat
obliquely in the shadows of research about sentencing and its relationship to public
opinion (e.g. Ryberg and Roberts, 2014) and in debates about punishment and demo-
cratic theory (e.g. Dzur et al., 2016). As a key influence over penal decision making and
outcomes, judicial independence is necessarily implicated in these debates but rarely
foregrounded. Moreover, a tendency to dismiss judicial independence as the ‘potent
myth’ of a hegemonic judiciary (Cavadino and Dignan, 2007: 105) along with some
avoidance of close sociological exploration of legal doctrines (Krygier, 2008; Lacey,
2008) has led to this key institutional variable of penal power being overlooked in both
its theoretical and practical configurations.
A developing field of study explores the role of emotions in judicial decision making
with insight about judicial impartiality as an informal norm of practice (Anleu and Mack,
2005, 2017; Bandes and Blumenthal, 2012; Mack and Anleu, 2010; Maroney, 2011b;
Maroney and Gross, 2014). However, little research has documented or explored the
everyday meanings and implications of judicial independence as both a formal rule and
a key organizing principle of judicial work in criminal justice practice.
This article addresses this gap in knowledge, drawing for the first time on a series of
biographical narrative interviews with retired Scottish judges to provide a novel empiri-
cal exploration of the ‘master narrative’ in everyday sentencing practice. From the van-
tage point of retirement, biographical narrative interviews provide space for retired
judges to reflect on the challenges of judicial work in the context of their legal and judi-
cial careers, illuminating the entanglement of individual life histories with core institu-
tional narratives.
Working in the interstices between ‘law in books’ and ‘law in action’, the first section
situates the concept of judicial independence in its global context, provides an overview
of commonly encountered uses of the concept of judicial independence and explores
assumptions about the judicial role and behaviour in criminal justice practice which
underpin those understandings. An outline of the scope and methodological basis of the
empirical research project is provided. The substantive section draws on narrative inter-
views to explore dimensions of judicial independence in penal practice such as the tradi-
tions of the judiciary; emotions and sentencing; engagement and distance. I argue that
legal doctrines such as judicial independence matter, carrying important meanings and
aspirations for judicial practitioners and exerting a practical force in penal practice which
extends beyond any symbolic potency.
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