On December 14 2017, we held our interim works-in-progress meeting with the majority of our feminist judges and one of our commentators. At the meeting, each judge gave a short overview of the case they are re-writing – its facts, the decision, and the broader context – and indicated the direction in which they anticipate taking their own, feminist judgment. The judge then highlighted particular issues on which they were seeking feedback. The issues ranged from technical, legal points through to how to adopt the appropriate judicial voice whilst retaining authenticity. After this, there was a short period of discussion, during which the judge was asked clarificatory and exploratory questions and given a chance to answer these and reflect on how to incorporate the points raised into his or her feminist judgment.
In the afternoon, we were fortunate to be joined by Lady Carmichael, who delivered a fascinating and entertaining talk on the task of judging. Lady Carmichael shared with us a huge range of insights she has gained through her judicial practice, including the importance of making one’s decision clear and explicating the reasoning that stood behind it. Part of this process involves being attentive to one’s audience(s), which might include the parties to the case, any appeal court, practitioners, and academics. It is important to ensure that both the language of the judgment and the rationale for it are as accessible as possible. Lady Carmichael explained how making judgments comprehensible is particularly important in the age of social media, when judicial decisions are widely circulated and read.
In reflecting on the shifting norms of judicial writing style, Lady Carmichael observed that contemporary judges are in general less prone to the flamboyance and rhetorical flourishes that characterised the judgments of some of their predecessors. In any age, however, there is a certain homogeneity in judges’ writing: an unarticulated set of norms that tend to govern the way judges express themselves in writing. It would be worth exploring the extent to which some of these may be gendered. Decisions are reached within a framework of legislation and previously decided, sometimes binding, cases. Judges at first instance may be more constrained by the arguments advanced by parties to the case than are their colleagues in the higher appellate courts.
Lady Carmichael encouraged us, as feminist judgment writers, to think about who will be our audience, which competing voices we will need to take into account, and who will be our contradictor(s). She observed that within feminism there is a plurality of voices, each of which might advocate for different outcomes and priorities.
After her talk, Lady Carmichael answered a number of questions from workshop attendees. All attendees found this input extremely valuable and are very grateful to Lady Carmichael for joining us.