4 - Judges and civil justice

Summary

Few questions are as central to the study of the legal process as that of how legal decisions are made. It is of transcendent practical significance, because a favourable decision is the presumed goal of every litigant. The question also is an essential jurisprudential one, because any theory of the nature of law necessarily embodies a judgment about how law is made.

Introduction

In this chapter I propose to continue the focus on the social and economic significance of civil justice, but to look more closely at adjudication or judicial determination within that system. This has presented something of a challenge because of the scarcity of UK research on judicial behaviour. While there is scholarly writing on civil procedure and research on legal services and advocacy, there is little written on the role of the judge in civil justice, except as an adjunct to the post-Woolf philosophy of adjudication – which required the judiciary to change their culture, be less passive, roll up their sleeves and get stuck into becoming case managers.

My interest in the judicial role and judicial decision making arises from a number of sources. First, from having observed judges in courts and tribunal hearings during various research projects – often from the perspective of litigants, but also sitting with judges on the other side of the bench or table. This has given me a vivid sense of the expectations, fears and competence of litigants in court. It has also given me an insight into the day-to-day work of judges and, in particular, those below the waterline of the High Court.