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Judicial Ideology in the House of Lords: A Jurimetric Analysis

Published online by Cambridge University Press:  27 January 2009

David Robertson
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Extract

For a variety of reasons political science in Britain has made no serious attempt to study courts and judges as political institutions and actors. Or at least this was true until recently. Several works in the last few years, especially Griffith's, Stevens's and a forthcoming book on the law lords by Alan Paterson, have pointed to a much needed change in this attitude. However, none of them have been works of political science, even though they have considered politics. By this I mean two things: they have not principally considered the judges' thoughts as political ideology; and they have not used the techniques and assumptions of rigorous, analytic political science. Indeed one of the few slightly earlier studies of the political role of the courts in Britain, by Morrison, specifically denies that such approaches, especially the statistical approach of jurimetrics, is possible in Britain. This article is an attempt to do the impossible, not so much because the author believes that Morrison's point is necessarily wrong, but because it is never sound methodology to abandon techniques that have been useful elsewhere without trying to make them work on different data sets. But first we must attempt to characterize the judicial role, before we try any study of the politics that may be attendant on judicial ideology.

Type
Research Article
Information
British Journal of Political Science , Volume 12 , Issue 1 , January 1982 , pp. 1 - 25
Copyright
Copyright © Cambridge University Press 1982

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References

1 Griffith, John A. G., The Politics of the Judiciary (London: Fontana, 1977).Google Scholar

2 Stevens, Robert, Law and Politics: the House of Lords as a Judicial Body, 1800–1976 (London: Weidenfeld and Nicolson, 1979).Google Scholar

3 Paterson, Alan, The Law Lords (forthcoming, 1981).Google Scholar

4 Morrison, Fred L., Courts and the Political Process in England (London: Sage, 1973).Google Scholar

5 Frank, Jerome, Law and the Modern Mind (New York: Tudor, 1936).Google Scholar

6 Llewellyn, Karl, The Bramble Bush (New York: Columbia University Press, 1930).Google Scholar

7 Schubert, Glendon, The Judicial Mind (Evanston: Northwestern University Press, 1965).Google Scholar

8 See fn.1.

9 Griffith, , The Politics of the Judiciary, p. 195.Google Scholar

10 Griffith, , The Politics of the Judiciary, p. 208f.Google Scholar

11 For example, the case studies contained in Schubert, Glendon and Danelski, David, eds, Comparative Judicial Behavior (New York: Oxford University Press, 1969).Google Scholar

12 Schubert, , The Judicial MindGoogle Scholar, and also Schubert, Glendon, The Judicial Mind Revisited (New York: Oxford University Press, 1974).Google Scholar

13 Coombs, Clyde H., A Theory of Data (New York: Wiley, 1964).Google Scholar

14 Becker, Karl, Political Behaviouralism and Modern Jurisprudence (Chicago: Rand McNally, 1965).Google Scholar

15 Becker, , Political Behaviouralism and Modern Jurisprudence, p. 105.Google Scholar

16 Becker, , Political Behaviouralism and Modern Jurisprudence, p. 243.Google Scholar

17 This position has become common now in American political science, where survey examinations of judges' role expectations have often been carried out. Some comparative work of this type has also been done.

18 See Schubert, and Danelski, , eds, Comparative Judicial Behavior.Google Scholar

19 Morrison, , Courts and the Political Process in EnglandGoogle Scholar. Others have felt, however, that it was both possible and desirable. See, for example, Atkin, Burton, ‘Judicial Behaviour Approaches in America and Britain’, paper presented to the Law and Politics panel, Conference of the Political Studies Association, Hull, 04 1981.Google Scholar

20 I am here ignoring the potentially important difference between giving a formal concurrence with another judge's reasoned opinion, and issuing one's own opinion. In the latter case two judges agreeing on how to dispose of a case may in fact have very different views. From my point of view this difference is irrelevant here, although it might have been preferable to take the distinction so as to record degrees of agreement. Unfortunately the available data are too sparse for this.

21 Knuller v. DPP (1973) A.C.435.Google Scholar

22 But not all appointments to the Supreme Court have always worked like this. Eisenhower's disappointment with the Republican, Earl Warren, is a notable case in point. However, most studies of the judiciary at the state level show a fairly strong connection between judicial voting and partisanship.

23 See, for example, Coombs, , A Theory of Data.Google Scholar

24 The programme used was MINISSA in a package of programmes devised by A. P. M. Coxon, University College, Cardiff.

25 For example, judges promoted from Queen's Bench Division, with considerable experience as criminal trial judges, might see due process differently from those who have a different legal experience. Judges from the Family Division could well behave in a systematically different way on adoption from those whose experience of family legal problems is restricted to interpreting wills and trusts.

26 I have no desire to apply contentious labels. Whatever the philosophy of conservatism says, however, hard line ‘law and order’ attitudes are associated with the politico-psychological syndrome of conservatism. See Eysenck, Hans J., The Psychology of Politics (London: Routledge, 1954).Google Scholar

27 This particular case actually never got beyond the Queen's Bench Division, but there are many roughly similar cases. Take, for example, the long line of cases dealing with the regulation of Bingo Halls, which raise similar problems of natural justice.

28 Armah v. Government of Ghana (1968) A.C.192.Google Scholar

29 British Oxygen Ltd. v. Minister of Technology (1971), A.C.610.Google Scholar

30 Chertsey UDC v. Mixnam's Properties (1965) A.C.735.Google Scholar

31 I am grateful to Eric Tanenbaum, SSRC Survey Archive, Essex University, for providing me with this programme and for help in running it.

32 Conway v. Rimmer (1968), A.C.910.Google Scholar

33 Anyone reading the argument in the most famous of these cases, Donoghue v. Stevenson (1932), A.C.562Google Scholar, will see that the judges themselves were aware of the enormous consequences of what they were doing.

34 Griffith, , The Politics of the Judiciary, p. 187.Google Scholar

35 Henderson v. Henry E. Jenkins and Sons (1970), A.C.282.Google Scholar

36 Parry v. Cleaver (1970), A.C.1.Google Scholar

37 ICI Ltd. v. Shotwell (1965), A.C.656.Google Scholar

38 The theoretical problems of deciding when a judgment is evidence of ideological bias, and what bias it might be evidence for, are very complex. Some discussion of this is contained in my forthcoming book: Robertson, David, Judicial Ideology (Oxford: Clarendon, forthcoming 1982).Google Scholar

39 One of the best discussions of differences in interpretation strategies available refers not to UK Courts but to the European Court of Justice, in the papers given at the Judicial and Academic Conference of the Court 27/8 September 1976. These are available from the Office for Official Publications of the European Communities, Luxembourg. In particular the paper by H. Kutscher, a senior member of the bench, is valuable. Denning, Lord's recent semiautobiographical The Discipline of Law (London: Buttenvorth, 1979)Google Scholar is the frankest account by a British judge of such matters.

40 Daymond v. South West Water Authority (1976), 1 All ER 39Google Scholar; Southendran v. Immigration Appeal Tribunal (1976), 3 All ER 611Google Scholar. See Robertson, , Judicial Ideology, Chap. 2 for a discussion of these.Google Scholar

41 Griffith, , The Politics of the Judiciary, p. 90.Google Scholar