Judicial Performance and Emotion

Thursday, 14 July 2016: 14:55
Location: Hörsaal 4C G (Neues Institutsgebäude (NIG))
Oral Presentation
Sharyn ROACH ANLEU, Flinders University, Australia
Kathy MACK, Flinders Law School, Australia
Conventional understandings of the judicial role emphasise impersonality and dispassion as central to neutrality, legal authority and legitimacy.  Performance of judicial authority should evince emotionlessness. Emotion is viewed as inherently irrational, disorderly, impulsive and personal and therefore inconsistent with the legitimate exercise of judicial authority. However, the courtroom is not only a legal setting; it is also a social situation – an interaction order – where information and emotions must be managed in face-to-face interactions.  Judicial officers are sometimes are required to act in a more human and personal way, and to manage emotions, both theirs and others, especially in the courtroom. At the same time, there are new pressures for more transparent or formal evaluation of judicial performance in which the judiciary is scrutinised for its behaviour as well as for the legal substance of decisions. These developments create a practical tension for judicial officers in their everyday work and a conceptual tension in understanding judging. Judicial behaviour which effectively incorporates human personality and feeling may enhance public confidence in the courts and the judiciary.  However, some human, emotionally-laden judicial behaviour could indicate that the judicial officer is not sufficiently detached and so raise questions about the impartiality and legitimacy of judicial authority.  Using surveys, interviews and observations of the Australian judiciary, this paper addresses these tensions by examining the ways judicial officers experience and display emotion and assesses the implications for legitimate judicial performance and its evaluation.