So my last book of 2009 was The Politics of the Judiciary by J.A.G. Griffith.
Every so often it's quite fun to read books which hark back to the halcyon days of my Law degree, and this book, about the political nature of the judiciary, is one of them.
The thrust of Griffith's argument is that the judiciary must act politically, and to illustrate this, points to certain cases that come before the courts that do not permit a decision that is not political, and also to the various extra-judicial roles that are performed by the senior judiciary.
On a negative note, I felt that the structure of the book could be unhelpful. It's split into three parts. Part one has an introductory section on the courts and the structure of the judiciary, and moves on to discuss extrajudicial activities, such as judges roles in public debate and on various committees formed to investigate various matters of political significance. This is all pretty interesting, although I think the section would have benefited from a longer conclusion bringing it all together.
My main issue, really, is with the second section. This is all about case law in which Griffith's points to judges acting in a political way. This was the weakest part of the book, with plenty of unnecessary meandering, and often with the key points not really drawn out or linked in a coherent way and cases referred to occasionally placed in a slightly odd order. The effect of the whole could be slightly confused at times, although the case law discussed is all linked to the overall point of the book and where there is good commentary, it's great. This section does feature some particularly fiery comments, such as Griffith's view that the House of Lords' decision in one case* was "unnecessary in law and deplorable in practice". He does have a mighty nice turn of phrase when he gets going.
Part three discusses judicial creativity and the political role of the judiciary; really, bringing the themes of the book together and making his central points. Unfortunately, there's a fair bit of repetition of the second section, where Griffith's refers back to a lot of the key cases previously discussed. This is where the meat of the book is, though, and it's compelling.
To treat Griffith's as simply writing a book which is 'anti-judiciary' is to misunderstand the nature of his argument. What he is attacking is not that judges cannot, in his view, be politically neutral – this is "not a matter for recrimination" – but the pretence of political neutrality which is unhelpful to understanding the role of judges in the political and social structure of the UK. He does a good job of making his argument.
One of the particularly interesting points was the idea that judges in the UK a "politically cohesive group" (as stated by Professor Mancini of the University of Bologna), which is not necessarily true in other European countries, due to the different structures of their judicial systems. For instance, France, which has a 'career judiciary'. I would have loved to see some more discussion of this, which is an area of particular interest to me. It was only briefly mentioned here, but it gives an idea of the ways in which the ideas in Griffith's book can be further developed.
In many ways the book is somewhat out of date now, the 5th edition being printed in 1997. It doesn't damage the central theory of the book, but it would actually be interesting to see what a contemporary edition would look like, in terms of analysis of cases after the mid-1990s. As it stands, this book is still worth reading for those interested in UK law and the role of judges.
* The case was about a newspaper publishing articles about children who had been born with gross deformities as a result of the drug thalidomide. The article was to bring the whole issue back to light, but as some actions were still pending (after a very long time), the House of Lords issued an injunction to prevent the articles being published.
Further reading: If you're interested in judges and the role of interpretation in legal decision-making, then Ronald Dworkin's
Law's Empire is a great, if not perfect, book to have a look at, and being rather more theoretical, it's less country-specific. I haven't, alas, read his more recent work,
Justice in Robes (although I'd like to!) but I hear, shock horror, that it is
also about judges.
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