In spite of this, Professor John Griffith argued that there is no such thing as an impartial judge; that the concept is an ideal that cannot be realized and that our judicial system is currently partial and biased. Whilst it is true that a judge is made up of their own morals, beliefs, political views etc, a judge need not necessarily be constantly guided by these. Robert Kane argues that the existence of “alternate possibilities” shows that we are autonomous beings. Hence we are always able to choose to act contrary to our inclinations, rather than letting our personal make-up guide our decisions for us. Applying this to the judiciary then, it would appear that although judges are formed of their own opinions and beliefs, it is possible to act contrary to them in order to make a judgement according to legal principles rather than personal motivation. Our judges are capable of making impartial and independent decisions. Griffith goes on to argue that “the judges have by their education and training and pursuit of their profession as barristers, acquired a strikingly homogenous collection of attitudes”. Even if this were to be the case, Griffith’s demand to diversify the judiciary is still unfounded, for even diverse recruits would be ‘indoctrinated’. Far more appropriate would be to investigate and diversify legal training.
Another argument of those who seek judicial diversification comes from the first female Justice of the Supreme Court of Canada, Bertha Wilson. She argued that “women view the world and what goes on in it from a different perspective from men”. Erika Rackley supports this view and claims that a “truly diverse judiciary utilises the presence of difference” to make judgements. However, utilising this ‘difference’ is to ignore the objective foundations that the English law is based on. Objective law is based on the “rational application of relevant facts”, rather than the subjective whims and caprices of the judges. A society where the latter exists means that the outcome of a case depends entirely on the judges assigned to it. There would be no legal certainty and no clear indication of the law if the judges were able to decide cases in such a subjective manner. It is the degree of objectivity in English law that makes it clear for citizens to follow and enables them the right to a fair trial.
Nevertheless, it is clear that there is something ‘wrong’ with the judicial system. In a group where 75% of judges are independently schooled, in comparison to merely 8% of the population, there seems to be some discrimination or prejudice at work. It is the make up of the judiciary that is suspicious, rather than its processes. In the 1970s, the then Lord Chancellor, Lord Hailsham, “formally implemented procedure to exclude homosexuals” from the judiciary by only allowing married people to serve. Such procedure is wrong, not because homosexuals would make the judiciary more representative or because of their ‘difference’, but because it deliberately excludes groups of society for discriminatory reasons. Excluding people from the judiciary because of their sex, religion, sexual orientation or ethnicity is wrong because it undermines their dignity and human rights.
To conclude, diversifying the judiciary in virtue of minority groups being more representative or offering different ‘perspectives’ creates a new approach to judgement making that is not compatible with British justice. It makes the judge partial to their group, rather than independent and unbiased. Furthermore, it means that the legal process becomes unclear and liability hangs on which judge is assigned to a particular case. However, diversity is favourable as a product of the removal of prejudices and discriminations that prevent minority groups forming part of the judiciary. The widening of legal opportunities to minority groups will not necessarily mean a different approach to judgement making.
Bibliography
Journals:
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Ferejohn, John, “Independent Judges, Dependent Judiciary: Explaining Judicial Independence”, 72 S. Cal. L. Rev. 353 (1998-1999)
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Mahoney, Kathleen E., “The myth of Judicial Neutrality: The Role of Judicial Education in the Fair Administration of Justice”, 32 Willamette Law Review 785 (1996)
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Milligan, Joy, “Pluralism in America: Why Judicial Diversity Improves Legal Decisions about Political Morality”, 81 New York University Law Review, 1232 (2006).
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Rackley, Erika., “Judicial diversity, the woman judge and fairytale endings”, Legal Studies, Volume 27, Issue 1, pages 74–94, March 2007
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Wilson, Bertha, “Will women judges really make a difference?” 28 Osgoode Hall Law Journal 510 (1990)
Books:
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Burbank, Steven B. and Sageman, Barry, “Judicial independence at the crossroads: an interdisciplinary approach”, SAGE, 2002.
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Grear, Anna, and Jones, Jackie, “Gender, sexualities and law”, Taylor & Francis, 2011
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Malleson, Kate, and Russell, Peter H., “Appointing judges in an age of judicial power: critical perspectives from around the world”, University of Toronto Press, 2006.
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Shetreet, Shimon and Deschenes Jules, “Judicial independence: the contemporary debate”, Martinus Nijhoff Publishers, 1985
Websites:
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Ifill, Sherrilyn A., “Judicial Diversity”,
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Brennan Centre for Justice, “Improving Judicial Diversity”,
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Hunter, Rosemary Professor, “Submission to the Lord Chancellor’s Advisory Panel on Judicial Diversity”,
Lord Falconer of Thoroton, Increasing Judicial Diversity: The Next Steps (2 November 2005), available at
Article 14 of the ECHR prohibits discrimination on the grounds of “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
Section 1(1)(f) of The Legal Services Act 2007
Article 7 of the UN Declaration of Human Rights states that “all are equal before the law and are entitled, without any discrimination, to equal protection of the law”.
The Right Hon. Lord Lane in Shetreet and Deschenes, “Judicial Independence: the contemporary debate”, Martinus Nijhoff Publishers, 1985, p525.
J.A.G. Griffith, “The Politics of the Judiciary”, Manchester University Press, 1977.
Kane, R. (ed.), “The Oxford Handbook of Free Will”, Oxford Handbooks Online, 2005.
Wilson B., “Will women judges really make a difference?”, (1990) 28 Os HLJ 507 at 515.
Rackley E., “Judicial diversity, the woman judge and fairytale endings”, Legal Studies, 27 / 1, 2007.
Binswanger, H., “What is objective law?”, TAFOL no.7, available at