(Dis)passionate Judging

Stina Bergman Blix, Uppsala University

“This court is a court of law, not of moral”, the judge emphasizes with a stern voice to the crying parents before she decides to separate their Siamese twins against their will so that one child will die instead of both. The reminder is delivered by actor Emma Thompson in the movie ’The Children Act’, based on the Ian McEwan book with the same name. Actors seldom play judges well because they cannot help to leek feelings, but Thompson excels by not showing too much. Her feelings are glimpsed in miniscule changes to her face or posture just like real life judges. The problem, if we want to compare her portrayal with real life, is that in the movie it is about morality. The glimpses of Thompson’s feelings show her occupation with the moral problem, while the glimpses I see in my studies of real judges concern their work – how to decide.

In the movie, the judge has built an emotional shield to protect her from the tragic stories in her everyday work life. This is probably true to some extent for real life judges too. The repetition of cases and daily exposure to misery can turn anyone numb eventually, but I would argue that the most important blocking is not due to numbness, but to the fact that judges are occupied by other feelings crucial for their work. They need to feel interest in the case; doubt different versions of events; critically scrutinize the facts; and keep their certainty at bay until they have heard all the evidence, but not decide on a verdict until they feel certain. This process of thinking and feeling is regulated by rules and statutes demanding that stories are told in ways that assist correct decision-making. In real life court hearings, the stories are not told the way they are in the cinema, they are strictly demarcated to provide facts related to the relevant prerequisites and fragmented by the question-answer style of examinations and cross-examinations. In our article (Dis)passionate law stories: the emotional processes of encoding narratives in court (Vol 49, Issue 2, 2022) we show that these streamlined ‘law stories’ produce distance from emotional as well as moral implications. The feelings I glimpse when I sit in court and hear in my conversations with judges afterwards are ease and interest when stories align with legal requirements, contrasted with disinterest and irritation when ‘too many’ details are introduced. Emma Thompson’s brilliant continence would be more accurate if we could glimpse doubt and certainty rather than sympathy and guilt. Morality is acutely present, but in the form of high expectations to live up to this professional ideal of listening, evaluating and deciding. 

Yet morality of the kind Thompson’s judge denounces are no doubt present in the cases I hear in my studies. A father beating and starving his child for years, a husband continuing to stab his wife long after she has died from her wounds, an old woman being raped by her care-taker are just a few examples from the top of my head. Even though the judge (in the movie) refers to the law as opposite to moral and the Swedish judges in my studies argue that their work has nothing to do with morality, the law itself is of course fundamentally moral. The father, husband and caretaker all received harsher sentences because of their perceived cruelty and the vulnerability of their victims. We do not want angry judges who let their moral outrage block their ability to doubt and scrutinize the facts, but at the same time, we want them to experience the reality of the cases they deal with. This is an important and tricky balance that researchers need to explore further. 

I have not yet met a judge who does not take her work seriously, so the potential empathy deficit is not one of downplaying the severity or authenticity of the cases per se. But in adversarial procedures the reality is often up for dispute, the parties want to persuade the judge of their version of the event, and since judges need to follow a strict process in their evaluation in these stories, their empathic immersion is bound to be restrained. When I recently talked about judicial decision-making at a conference I was suddenly overwhelmed by the contrast between my own and the other participants’ presentations in the panel. We all referred to gruesome events of murder, war crime, refugee trauma, and intimate partner violence, but while the other researchers painted vivid pictures of despair, pain and anger, I described subtle emotions of interest, doubt and certainty. They explored the emotional tolls of managing, retelling and working with these events in court, I scrutinized the process of deciding on them. Does it jeopardize the publics’ trust in the rule of law if the discrepancy in emotional and empathic experience of the same case is too large between the tellers—witnesses, defendants, councils, and the listening judges?

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