Performing Judicial Authority: Engagement and Ethics

Kathy Mack1, Sharyn Roach Anleu 2

1 School of Law, Judicial Research Project, Flinders University, GPO Box 2100, Adelaide SA 5001, judicial.research@flinders.edu.au

2 School of Social & Policy Studies, Judicial Research Project, Flinders University, GPO Box 2100, Adelaide SA 5001, judicial.research@flinders.edu.au

In an adversarial legal system, the judicial officer is expected to perform authority by displaying a particular form of detached impartiality, participating actively only when parties require a decision, ruling or order, which is determined by applying law to facts.  Legal rules are impersonal, and impartiality is the central judicial value, buttressed by norms of judicial restraint and passivity. Yet, applying legal rules and procedures requires judicial authority to be performed.  Judicial officers are the crucial link between formal abstract law, the legal institution of the court, and the everyday practical tasks in the courtroom, often in face-to-face interaction with court users.  Developments such as therapeutic jurisprudence and social psychological understandings of procedural justice, requiring some judicial engagement with court participants, are beginning to inform this everyday judicial work. 

Especially in lower courts, judging is more social, more interactive, and more varied than conventionally understood, as investigated in detail in our recent book:  Performing Judicial Authority in the Lower Courts (Palgrave, 2017). This engagement can require greater attention to emotions, different judicial emotional capacities and more emotion work, including management of the judicial officer’s own emotions or those of others.

However, as this research shows, the ethical norms regulating judicial performance do not adequately address the intersection between emotion and the practical demands of everyday judicial work.  While there is some implicit recognition of emotion in the emphasis placed on interactional qualities such as patience, courtesy, temperament, or detachment, the place of emotion in judicial work is rarely directly addressed. General or abstract ethical statements do not provide sufficient guidance for the actual emotional demands and experiences faced by judicial officers in their everyday work.

 

Biography:

Kathy Mack is Emerita Professor of Law at Flinders University, Adelaide. She is the author of a monograph, book chapters and articles on alternative dispute resolution, and articles on legal education and evidence. With her co-author, Sharyn Roach Anleu, she has also conducted empirical research involving plea negotiations.

Sharyn Roach Anleu is Matthew Flinders Distinguished Professor in the School of Social and Policy Studies at Flinders University, Adelaide, and a Fellow of the Australian Academy of the Social Sciences in Australia. She has published widely on sociology of law, deviance and social control, and gender in the legal profession.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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