It has now been more than 25 years since Lord Bingham’s seminal collection The Business of Judging: Selected Essays and Speeches (OUP 2000) was published. That natural starting point for any review of a book on this topic prompts two thoughts. The first is to note the relative paucity in the intervening period of weighty reflective work on the nature, theory and practice of judging from those who know that “business” best. That is not to say that there has been no important thinking or writing done in this time. In particular much time has been spent very profitably in bringing a great measure of international consensus to questions of judicial impartiality and independence. There have also been a number of other important but either slighter or more specifically focused contributions, such as the collection of essays Being a Judge in the Modern World edited by Jeremy Cooper (OUP 2017) and Ryder and Hardy, Judicial Leadership (OUP 2019).
The second thought is to ponder the bravery required for anyone to take up this challenge, knowing that The Business of Judging sits, well thumbed, on every judicial bookshelf. However, Sir Ross Cranston is more than qualified to do so, as one of the most distinguished first instance judges of his generation, as a noted legal historian and as educator both of academic students and of judges. Indeed, as the Judge in Charge of the Administrative Court, Sir Ross played a critical hands-on role in educating a generation of new judges (including the author of this review!). It is therefore unsurprising that Judging more than makes up for the past quarter-century’s gap in the scholarship.
The approach combines the theoretical with the practical (though there is much that is practical in the theory and much analytical rigour in the practical). Thus the book divides into two parts: Values and Practice. In “Values” the analysis is divided into three chapters – on independence, impartiality and integrity – those values identified as the “core mission statement” of the Judiciary of England and Wales on its website. Sir Ross’s primary intention in each chapter is to move beyond the known and obvious; to highlight how much more there is to these concepts than first meets the eye and to draw attention to those less appreciated aspects. The first chapter is therefore only in part concerned with the most classic context in which the question of independence arises – the relationship between the judiciary and external actors – as comprehensive and refreshingly international though the treatment of that topic is. The bulk of Sir Ross’s attention is instead directed at the other forms by which independence can manifest and, more importantly, be threatened. A particularly valuable contribution comes in the discussion of what Sir Ross calls “structural independence”, in which the theory of independence is connected to the nuts and bolts of running a justice system. What may at first appear to be principally operational matters – the remuneration of judges and procedures of internal discipline to take two examples – are instead revealed to have critical impacts on the reality of independence.
Sir Ross follows a similar approach in his second chapter on impartiality. He begins with its most visible aspect – the behavioural, in which his focus is on the micro level attitudes of individual judges – before zooming out to cover those higher order aspects of impartiality, both at the structural level of the judiciary as a whole and in its impact upon methodologies of proper judicial decision-making. Once again, Sir Ross skilfully connects the abstract to the tangible – his section on the disqualification of judges on the basis of partiality, for instance, manages to link his more theoretical work on the nature of bias and its various subsets to what can actually be done to combat it. There is even a slightly wry conclusion as he acknowledges that while much progress has been made in understanding matters such as cognitive bias, the need for judicial shortcuts in order to manage a judge’s workload are not helpful in addressing the problem which is now so much better understood.
The third chapter, on integrity, deals not just with its value as a principle and with how it can be generated and safeguarded, including fascinating accounts of the socialisation process which realigns judges away from prior norms, but with the various contexts in which issues of integrity present. That, of course, is not limited solely to judicial behaviour in the courtroom, though Sir Ross handles the multiplicity of ways in which judicial behaviour in that sphere can lead to unfairness for those who appear before them with thoroughness and the wry humour to be expected of him. His account takes us on a journey which reminds us (via a barrel of sturgeon) that English judges have not always been above reproach on the question of corruption and, in a world where corruption remains an issue in numerous courts around the world, his analysis of what has steered the change here is highly instructive. Sir Ross handles the nature of and justifications for the (necessary) restrictions on the private lives of the judiciary with care and the sort of insight that one might only gain through experience – and delicately ventilates both the issues which arise from the “third stage” career after retirement from the judiciary and potential routes for controlling this fairly.
Independence, impartiality and integrity are, of course, only the first three of the Bangalore Principles of Judicial Conduct. That the second part of the book is not arranged explicitly in chapters invoking the remaining three – propriety, equality, and competence and diligence – does not mean that they escape coverage. These values tend instead to be dealt with as aspects of those other principles; equality, for example, is covered indirectly in Sir Ross’s treatment of partiality, and in particular his section on unconscious bias. This approach allows one to better see how the entire network of principles coheres into a single “values system”.
Where Part I gives a more concrete base to the theory by grounding it firmly in judicial practice, Part II is explicit in its focus on “Practice”. Chapter 4 details the variety of legal frameworks deployed to govern the judiciary, although the focus is more on policy as it affects individual judges than on the organisation of the courts system. It is welcome that particular attention is given to canvassing models of judicial appointments, and those who find the current system less than satisfactory will find much food for thought here. The problem is, as Sir Ross makes clear, a knotty one. So, too, is consideration given to other elements of the patchwork of provisions in terms of service, discipline and removal from office. He draws together much material which many judges do not know before taking the job and spend years finding out thereafter. As before, this is thoroughly and refreshingly international in scope and Sir Ross allows the evidence to do the talking; merely providing material for the reader to attempt, if so minded, their own improved normative scheme.
Chapter 5 is devoted to the vital but elusive concept of “judgecraft”, or the art of judging, and it is to this chapter that fellow judges will instinctively turn first. It is a difficult concept to define and, as Sir Ross acknowledges, learned best “on the job” than through formal training. However, an understanding of it is important to the non judge and the non legal reader, for it explains a lot of what value is added by a good judge. Sir Ross tracks the matter along practical lines, tying it down to the various regular activities of a judge – the giving of ex tempore judgments, dealing with litigants in person, making decisions on the papers and so on – to illustrate how sound judgecraft might augment one’s approach. But judgecraft runs deeper than this and Sir Ross’s commentary on how judgecraft is manifested in a collegial judiciary and leadership in an administrative, rather than purely jurisprudential, sense will probably come as a surprise to the non-judicial reader. Meanwhile all first instance judges will be tempted to send a photocopy of page 223 (which tellingly reminds us of the importance of civility in appeals, the power of the appellate judgment to corrode morale and the need for recollection of the difficulties of coalface judging) to their relevant appellate court.
The final chapter is concerned most directly with “judging” in its literal sense: how judges make decisions and the pros and cons of those different approaches. Sir Ross covers three broad theories of decision-making: first the psychological, in which both intuitive and emotional modes of judging are covered, second the relational, where the structures in which decision-makers perform their tasks are examined as forms of free-standing influence, and the attitudinal, where consideration of ideology and personal values are considered. The breadth of the discussion is wholly welcome as, of course, no single model will ever do “judging” justice; the “why” and “how” of decision-making will invariably be a blend of those factors. Those who have their own theory of judging will still find much here to refine and fine tune their thoughts. For those who spend less time thinking about the process, the variety of approaches and models will be an eye opening experience. Wisely Sir Ross rounds off the chapter via a reflection on ideals versus the real world followed by the practicalities which stop any judge conforming exactly to any single model or ideal type: the disciplines of statute, precedent and “responsive judging” – meeting the case as and when it presents itself.
There are inevitably a few (a very few) minor gripes. I would have enjoyed some more explicit commentary on the relationship between the “three Is”. Their interdependence is implicit throughout the first part of Judging and will be relatively straightforward to grasp for practitioners and academics, but might be slightly lost on those outside the legal community. In the modern world, where the role of the judge in society is not necessarily fully understood, let alone appreciated, all help in bringing understanding of these concepts and how they lie entwined at the heart of the judicial process, is warmly to be welcomed.
The only other criticism which stayed with me relates to the absence of a final “Conclusions” chapter. This may be an unfair criticism, given the excellence of the individual chapter summaries and the fact that (obviously) it is not an easy task to fully synthesise such a comprehensive and detailed book. But this was perhaps a point where a more vivid illustration of the connection between Parts I and II would have resonated, again particularly for those less experienced with the law. Alternatively, this might have provided a platform for a less reticent/more provocative approach on some of the controversies handled so fairly and discreetly within the main text, but in relation to which any reader will suspect the author holds views which would enrich ongoing discussions.
These small quibbles should not, though, serve to put anyone off. As one would expect, this book is a serious piece of scholarship. The aficionado or the working judge will find endless value in the range of material and the depth with which it is considered. For the judge it can be a really vital handbook, pulling together much material which (like the legal and policy framework for the judicial role) is something of a patchwork. For the interested practitioner or academic it seamlessly both analyses and weaves together the theory and the practice of judging. At the same time, however, Sir Ross has written with such clarity (and, as noted, gleams of humour) that the book is well accessible to a lay audience.
