Everyday routines that take place in courtrooms have much potential to be sensationally intense and emotionally complex events. Courtrooms can be alien and alienating theatres, in which long-standing painfully charged conflicts and deep-seated traumas that engage multiple dimensions of depravation and social exclusion are subject to public display, scrutiny and evaluation. Power struggles are thinly veiled behind the niceties and peculiarities of archaic rituals and idiosyncrasies of legal discourse. The decisions taken may change the course of life for those in the courtroom and beyond, often with devastating effect. In the midst of this complex, emotionally charged setting, according to one of the founding myths of the Western legal tradition, sits the elevated, serene and emotionally detached institutional authority figure of the judge. Embodying reason and rationality, the only judicial emotion performance allowed is dispassion.
In Judging and Emotion: A Socio-Legal Analysis Sharyn Roach Anleu and Kathy Mack take the reader through the looking glass of ‘judicial dispassion’ to explore the feeling rules and everyday emotion work that judges perform in the courtroom. The project draws on the rich fruits of many years of pioneering empirical research into the judiciary by the two authors and their research teams. The data were generated by way of interviews with judges, many hours of courtroom observations and surveys. Their particular focus of inquiry is the judiciary in Australia. It covers the whole range of judicial positions but much of the data explore the judiciary who work in the lower courts. These are the judges who deal with the vast majority of the matters that come before the courts.
By way of setting the scene, the opening chapter provides a clear and concise pathway through a sprawling multidisciplinary field of related scholarship and research. More specifically, it situates the analysis that follows in the context of debates about conceptualising emotion and existing research on emotion work in general and in the professions in particular. A second introductory chapter maps the institutional landscape of the court organisation, with an overview of the nature of the work undertaken, those who are found in the courts and the various types of cases the judges deal with. Building on these foundations the three interrelated chapters that follow offer the core of the analysis of the empirical data that examine the feeling rules and emotion work performed by judges.
The first, Chapter 3, takes as its point of departure the ways that judges frame, negotiate and perform the role of the detached and dispassionate decision maker; what the authors describe as ‘a foundational legal value’ of ‘impartiality’. A particular focus of the chapter is the space within ‘impartiality’ for judges to deploy and perform empathy. Chapter 4 digs deeper, to investigate the way judges manage their own emotional experiences and performance of emotions in the courtroom. Chapter 5 focuses on the emotion work that judges do to manage the emotions of others in the courtroom.
Common to all three chapters is the researchers’ sensitivity to the complexity of the courtroom context in which their research subjects operate. One dimension of this is the diversity of courtroom settings: trial courts in contrast to appeal courts, those dealing with criminal matters in contrast to private (civil) matters. Another is the various types of cases, including but not limited to sexual and family violence, matters relating to family breakdown and children though to private law disputes that cover the whole spectrum of monetary loss. Multiple courtroom players also bring and generate a wide variety of emotional investments, experiences and performances. Contrary to expectations is the duration of these complex encounters; they often take place in just a few minutes. The careful selection of data allows the authors to shine a light on how judges respond in this complex and dynamic setting. The chapters offer a fascinating insight into the toolbox of techniques, tactics and strategies that judges use to manage both their own emotions and the emotions of others in the courtroom setting.
Against this backdrop of showcasing the importance of emotions in the courtroom, in Chapter 6 Roach Anleu and Mack explore the guides, codes and institutional mechanisms that seek to set the parameters of and regulate good judicial practice and behaviour. In sharp contrast to what they discovered by way of interview and courtroom observation, their investigation finds little reference to the feeling rules and emotion work that their empirical research revealed as a central part of judicial practice in many courts. This is not as surprising at it may at first seem. In part, this is because these codes and mechanisms perform an ideological role, generating and institutionalising the founding myths of the legal tradition that informs the institution. There is also a need for caution when dealing with legal discourse. As others (Cain and Harrington, 1994) have noted, lawyers are gifted translators; everyday matters are translated into legal categories. Thus, the categories that populate the regulatory regime may be capable of accommodating that which appears to be formally absent. The empirical findings set out in Chapters 3, 4 and 5 might indicate that this is an approach that has some relevance here. Otherwise, there is a strong temptation to conclude that the regulatory regime is built on a profound miscognition, if not delusion, about the nature of judicial labour.
The authors offer another important insight into the nature of regulation. The generation and codification of feeling rules and good practice is not so much absent from professional formation and regulation, but takes place by way of the many informal mechanisms that work to transmit judicial cultural from generation to generation. But there is potentially a cost to this system of informal institutional formation and self-regulation. Its operation may at best remain obscure, operating in the shadow. At worst, its failings and any negative impacts it might have on the delivery of justice and on the experience of justice of those who are the objects of justice are largely rendered invisible, potentially unchecked and unaddressed.
For this author, professional self-regulation raises a question about the importance of fellow judges as the audience that judges have in mind when they identify and negotiate the feeling rules that apply to courtroom settings. In Judges and Their Audiences (2006), US scholar Lawrence Baum, like Roach Anleu and Mack, argues that judges do their work with a variety of possible audiences in mind. However, Baum argues that judges operate with a hierarchy of audiences in mind, and, more specifically, that fellow judges have a particular importance. Victims, the accused, applicants and defendants are lower in the pecking order of audiences deserving attention. The importance of self-regulation that the authors of the Australian study found might suggest that fellow judges are of particular significance: falling foul of their expectations is a major threat to a judge’s self-worth and institutional integrity.
One of the reasons for the priority suggested by Baum is the judges they have in mind: the judges in the higher courts. Roach Anleu and Mack’s research is more focused on the lower courts, which work in a very different context. The authors tend to emphasise the challenges of the need to negotiate the various and wide-ranging expectations of multiple audiences. This doesn’t necessarily mean that in the final instance hierarchies of audience are not embedded in judicial practice. The speed at which judicial activities take place may be indicative of the great success of the informal processes by which judicial culture is transmitted from generation to generation. Digging deeper into the processes of judicial cultural transmission that takes place backstage and off stage would make for a fascinating if challenging future project.
Australia is the specific focus of this study. But the findings and methods used have much wider resonance. This lies in the institutional heritage that the Australian legal system shares with many countries that operate with the legacy of the British version of the Western legal tradition exported and implanted across the globe by way of the British Empire.
So what is left of one of the founding myths of the Western legal tradition? Judging and Emotion demonstrates unequivocally the importance of feeling rules in the courtroom. It also draws attention to the significance and challenging nature of the emotion work that judges undertake as part of their everyday routines. One answer to the question might be that it lies in ruins. But this is not the case. To find the answer, I would urge you to read this excellent book.
Judging and Emotion is a milestone in research that examines emotion in the practices of the judiciary operating within the rule of law democracies. It is a fitting testament to the pioneering research into the judiciary that Roach Anleu and Mack have undertaken over many years. It is a must-read for anyone interested in the interconnection between law, justice, the judiciary and emotions. It is an invaluable study of the skills and knowledge a good judge needs to have and to put to work in the courtroom. It remains the case that, in other jurisdictions, empirical studies of the judiciary in general and of the emotion work judges do in the courtroom are in need of urgent development. I hope it will inspire others to take seriously the empirical study of the judiciary in general and in particular the emotional landscape in which they operate and the emotion work they perform.
Cain, M. and Harrington, C. (eds) (1994) Lawyers in a Postmodern World: Translation and Transgression, New York: New York University Press.