Abstract
This paper seeks to answer a prior question before one can look at how to measure judicial quality. That question is what is it that we expect a judge to do and to be. And that question has to be answered in the context of what we take to be what I call the ethical life of the law and of the judge. What I have argued for is that the judge stands in an anxious place, ‘the middle’, marrying both the universal law and the particular decision, cognisant of the general law and also cognisant of the particular individual or case that they encounter. The paper explores that place and how to teach the judge to use the anxiety therein creatively and not run away from it by collapsing that space into either the universal law or the particular decision.
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Notes
- 1.
This paper is a reworked and updated version of ‘In the Judgement Place’ in Bankowski (2006), pp. 23–39.
- 2.
See Detmold (1989) whose example I adapt.
- 3.
See the memoirs of the English hangman, (Pierrepoint 1977) who came to realise that he was doing this. See also William Calley who was responsible for the My Lai massacre in the Viet Nam War said ‘personally I did not kill any Vietnamese that day: I mean personally I represented the United States of America. My country.’ quoted in Bourke (2010, 226).
- 4.
See Detmold for this argument about the existence of the particular.
- 5.
I am deeply indebted to Claire Henderson Davis for many insights and fruitful collaboration. See also our joint piece Bankowski and Davis (2000).
- 6.
See Selznick (1992).
- 7.
This of course has its problems and it is not to be taken as saying that one should decide cases by looking at the practice of, for example, estate agents!
- 8.
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Bańkowski, Z. (2018). Judging and the Ethical Life. In: Bencze, M., Ng, G. (eds) How to Measure the Quality of Judicial Reasoning. Ius Gentium: Comparative Perspectives on Law and Justice, vol 69. Springer, Cham. https://doi.org/10.1007/978-3-319-97316-6_2
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