Advertisement

Introduction

  • Alan Paterson
Part of the Oxford Socio-Legal Studies book series (OSLS)

Abstract

The genesis of this book owed more to curiosity than to the utilitarian or historical concerns of others who have written on the House of Lords in the recent past.3 Curiosity, first, as to the process by which appeals are decided in the Lords. Traditionally, academic discussions of judicial decisions and decision-making in the United Kingdom have taken as their starting points the judgements of the courts.4 But do the wider legal community, solicitors, counsel, even academics themselves, not contribute to the development of the law in decisions of the courts? In appellate cases, how much depends on the interaction between the Bar and the Bench or that between the judges themselves? Is appellate decision-making a group activity, or as traditional analyses imply, merely several individuals at work? To restrict one’s inquiry to the judgements of the courts, the end products of the decision-making process, rather than scrutinising the dynamics of the process itself, is in some senses no more intellectually satisfying than attributing Christmas presents to Santa Claus, or babies to storks.5 This work, then, is a first attempt to look at the process by which judicial decisions are arrived at in the House of Lords.

Keywords

Judicial Decision Role Perception Historical Concern English Common Law22 Privy Council 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

Notes and References

  1. 1.
    W. J. M. Mackenzie, Politics and Social Science (Harmondsworth: Penguin, 1967) p. 286.Google Scholar
  2. 3.
    See L. Blom-Cooper and G. Drewry, Final Appeal (Oxford University Press, 1972) pp. 4–5 andGoogle Scholar
  3. R. Stevens, Law and Politics (London: Weidenfeld and Nicolson, 1979) pp. xv–xviii.Google Scholar
  4. 5.
    cf. Lord Reid in ‘The Judge as Law Maker’, 12 J.S.P.T.L. (1972) 22. ‘[W]e do not believe in fairy tales any more.’Google Scholar
  5. 10.
    John Griffith, The Politics of the Judiciary (London: Fontana, 1977) pp. 180–1.Google Scholar
  6. 12.
    See C. M. Campbell, ‘Legal Thought and Juristic Values’, 1 B.J.L.S. (1974) 13 at p. 24 andGoogle Scholar
  7. J. Gibbs, ‘Definitions of Law and Empirical Questions’, 2 Law and Soc. Rev. (1968) 429.Google Scholar
  8. 14.
    Gibbs, loc. cit., p. 446.Google Scholar
  9. 15.
    Although there are many schools of thought in the interactionist camp most of them share three basic premises. These are that: (1) human beings act towards things on the basis of the meanings that the things have for them; (2) these meanings are a product of social interaction in human society; and (3) these meanings are modified through an interpretive process that is used by each person in dealing with the things he encounters. In short, human beings, in this perspective, are seen as constructing their realities in a process of interaction with other human beings. (This account is taken from B. N. Meltzer, J. W. Petras and L. T. Reynolds, Symbolic Interactionism (London: Routledge and Kegan Paul, 1975) p. 54.)Google Scholar
  10. 19.
    See D. McBarnet, ‘False Dichotomies in Criminal Justice Research’ in J. Baldwin and A. K. Bottomley (eds), Criminal Justice (London: Martin Robertson, 1978) p. 23.Google Scholar
  11. 26.
    Robert Wilson’s doctoral research (1967–71) at LSE, on the English High Court judiciary (see Appendix), was intended to be based on interviews with the judges. After seventeen had been completed, several events led the judges to re-think their policy of co-operation. Brian Abel-Smith in the same period planned to interview 20 per cent of the practising barristers in England and Wales but the project was aborted when the Bar Council withdrew its support. See B. Abel-Smith and R. Stevens, In Search Justice (London: Allen Lane, The Penguin Press, 1968) p. 13. Jenny Brock’s M.Phil. research in 1970, at Bedford College (London), on the social background of the English judiciary encountered resistance which led her to abandon her attempt to send questionnaires to the judges. Again, in 1973 Maureen Cain was refused permission by the Bar Council to study their records to obtain social background information on the junior Bar. The most publicised failures by researchers to obtain the co-operation of the Bar or the Judiciary were John Baldwin and Michael McConville’s research (1974–8) on plea bargaining and on jury trials in Brimingham Crown Court. See Negotiated justice (London: Martin Robertson, 1977) pp. 8–9 and Jury Trials (Oxford University Press, 1979). But in the latter research, at least, individual judges and solicitors (though not members of the Bar) responded helpfully to the researchers’ approaches. But these failures provide only half of the story. Robert Stevens interviewed several Law Lords as part of his research on the House of Lords (now published as Law and Politics) and Louis Blom-Cooper and Gavin Drewry also received assistance from several Law Lords in their study of the House (published as Final Appeal). Shimon Shetreet succcssfully issued a questionnaire to a number of judges in his research on the English judiciary. See Judges on Trial (Amsterdam: North-Holland Publishing, 1976). As Thomas Marvell has shown, there have now been over 100 studies on appellate judges in America using interviews or questionnaires, and the judges by and large have been very co-operative. See Bibliography D, Appellate Courts and Lawyers (Westport: Greenwood Press, 1978).Google Scholar
  12. 27.
    ‘To tape or not to tape’ is a question over which elite interviewers are divided. On the one hand, taping provides an accurate report of the interview, whilst at the same time freeing the interviewer to concentrate on the job in hand. On the other hand, it is said to introduce distortions and inhibitions into the interviews. See Jack Douglas, Investigative Social Research (Beverly Hills: Sage Publications, 1976) p. 33. Thus, James Eisenstein found that tape recording his interviews with US attorneys hindered the development of rapport and inhibited the respondents’ answers on sensitive topics. See Counsel for the United States (Baltimore: Johns Hopkins University Press, 1978) p. 215. Yet, neither John Donnell in The Corporate Counsel (Indiana University, Bloomington: Bureau of Business Research, 1970) p. 19 nor Thomas Marvell, in Appellate Courts and Lawyers, p. 241, encountered significant problems in taping their interviews. Nor did I. It was not my experience that respondents who refused to be taped were noticeably more forthcoming than those who were recorded. In any event, it was always possible to switch the recorder off, if an interviewee wished to discuss matters which he considered to be particularly sensitive.Google Scholar
  13. 29.
    On elite interviewing I found L. Dexter, Elite and Specialised Interviewing (Evanston: Northwestern University Press, 1970) much the most helpful guide, although Hunt, Crane and Wahlke, ‘Interviewing Political Elites’, LXX American Journal of Sociology (1964) 59–68 and A. Cicourel, Methods and Measurement in Sociology (New York: Free Press, 1964) pp. 73–104 were also of some assistance.Google Scholar
  14. 30.
    The confidentiality aspect of my research has caused considerable problems. Almost all my interviews were obtained on the basis of a guarantee of confidentiality on my part. This has meant that my doctoral thesis (for which the research was originally carried out) is not available for consultation. It has also meant that I have had to go back to most of the respondents in order to obtain permission to publish material from their interviews, and (if permitted), to identify the source of the quotation or the information presented. On the general problem of confidentiality in judicial research see S. Ulmer, ‘Bricolage and Assorted Thoughts on Working in the Papers of Supreme Court Justices’, 35 J. of Pol. (1973) 286.Google Scholar

Copyright information

© Alan Paterson 1982

Authors and Affiliations

  • Alan Paterson
    • 1
  1. 1.University of EdinburghUK

Personalised recommendations