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Representations of the (woman) judge: Hercules, the little mermaid, and the vain and naked Emperor

Published online by Cambridge University Press:  02 January 2018

Erika Rackley
Erika Rackley*
Affiliation:
Kent Law School, University of Kent
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Abstract

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This paper reconsiders images of the judge and, in particular, the position of the woman judge using fairy tale and myth. It begins by exploring the actuality of women's exclusion within the judiciary, traditional explanations for this and the impact of recent changes. It goes on to consider the image of the Herculean judge, arguing that whilst we may view him as an ideological construct, or even as a fairy tale, we routinely deny this to ourselves and to others. This both ensures the normative survival of Hercules and simultaneously constrains counter-images of judges, including that of the woman judge, who becomes almost a contradiction in terms, faced with the need to shed her difference and fit the fairy tale. Like the little mermaid, the woman judge must trade her voice for partial acceptance in the prince's world.

This image of silencing which Andersen's tale so vividly captures highlights a paradox in current discourses of adjudication. On the one hand, women judges are viewed as desirable in order to broaden the range of perspectives on the bench, thus making the judiciary more representative; on the other hand, judges are supposed to be without perspective, thus suggesting there is little need for a representative judiciary. Feminists and other commentators negotiate their way uncomfortably through this territory, acknowledging a gender dimension to adjudication, but failing fully to confront its implications. This paper seeks to ‘undress’ the judge, to flush out images of adjudication which deter or prevent women from joining the judiciary and constrain their potential within it. It highlights both the role of the imagination in existing conceptions of adjudication and the increasing necessity for a re-imagined Hercules – an alternative understanding of the judge which women and other groups currently underrepresented on the bench can comfortably and constructively occupy.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 4 , November 2002 , pp. 602 - 624
Copyright
Copyright © Society of Legal Scholars 2002

References

1. Andersen, H C ‘The Little Mermaid’ in Lewis, N (trans) Hans Andersen's Fairy Tales (London: Penguin, 1981) pp 41–72 Google Scholar, 61. The Little Mermaid is the story of a young mermaid who falls in love with a handsome prince after she saves him from drowning. In order to join his world and win his love (and thereby an immortal soul), she enters into a dangerous bargain – her beautiful voice in exchange for legs. If she is to survive, the prince must fall in love with her. Yet, although the silent mermaid intrigues the prince, he does not love her. On the moming of the prince's wedding to a neighbouring princess, her sisters rise from the sea and offer the little mermaid an escape – a knife that she must plunge into the prince's heart. Unable to kill her prince, her heart breaks. She throws herself into the sea where she dissolves into the foam. As the story ends, she is transformed into a spirit of the air – neither mermaid nor woman.

2. Dusky, L Still Unequal – The Shameful Truth about Women and Justice in America (New York: Crown Publishers, 1996) p 16 Google Scholar, quoted in McGlynn, C The Woman Lawyer -Making the Difference (London: Butterworths, 1998) p 7 Google Scholar.

3. See Oscar Wilde's tale ‘The Fisherman and his Soul’ in I Murray (ed) Oscar Wilde: Complete Shorter Fiction (Oxford: Oxford University Press, 1979; issued as a World Classic paperback, 1980) pp 203–236 in which the story of Hans Andersen's little mermaid is reversed. In Wilde's story, the fisherman rejects his soul in order to be with the mermaid. Ultimately, however, the mermaid suffers the same fate – death – when the fisherman's soul (evil without the tempering influence of his heart, ie, love) returns and tempts him irrevocably away from the mermaid's side with tales of dancing feet.

4. I would argue that distinguishing and acknowledging the woman judge, whilst risking reinforcing man as the norm, is nevertheless a necessary route to the exposure of hidden gendered assumptions, thus enabling progression toward a time when such a prefm (woman) is superfluous. See, for example, McGlynn, n 2 above, p 4; and Thomton, M Dissonance and Distrust: Women in the Legal Profession (Oxford: Oxford University Press, 1996) p 5 Google Scholar, adopting a similar approach, but cf Graycar, R ‘The Gender of Judgments: An Introduction’ in Thomton, M (ed) Public and Private – Feminist Legal Debates (Oxford: Oxford University Press, 1995) pp 262, 264–265Google Scholar and ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 UBCL Rev 1 at 3, arguing against the prefix ‘woman’ as it serves to ‘disempower what would otherwise be a position of power’. It is equally arguable that within the legal world men who fail to conform to the ‘masculine’ norm are also disadvantaged and as such become ‘other’. See, for example, R Collier’“‘Nutty Professors”, “Men in Suits” and “New Entrepreneurs”: Corporaiity, Subjectivity and Change in the Law School and Legal Practice’ (1998) 7 Social and Legal Studies 27.

5. Hercules is, among other things, the name given by Ronald Dworkin to his fictitious ‘superjudge’ in Taking Rights Seriously (London: Duckworth, 1977) ch 4 and Law's Empire (Oxford: Hart Publishing, 1986). Although his selection for his judge of a character of such massive mythical proportions is far from coincidental, I would not wish to contend that my Hercules and his are necessarily correspondent on all points. On ‘the Legal Imagination’ see further, Ward, I Shakespeare and the Legal Imagination (London: Butterworths, 1999)Google Scholar espch 1.

6. Cavendish, R (ed) Mythology: An Illustrated Enyclopedia of the Principal Myths and Religions of the world (London: Little Brown and Company, 1992) p 8.Google Scholar

7. Warner, M From the Beast to the Blonde: On Fairy Tales and their Tellers (London: Vintage, 1995) p xvi Google Scholar.

8. The development of law and literature approaches law in recent years has many strands, only one of which is represented in this paper. For a general introduction to law and literature approaches, see Ward, I Law and Literature – Possibilities and Perspectives (Cambridge: Cambridge University Press, 1995) ch 1CrossRefGoogle Scholar. Recent works include Aristodemou, M Law and Literature – Journeys from Her to Eternity (Oxford: Oxford University Press, 2000)Google Scholar; and Williams, M Empty Justice: One Hundred Years oj’ Law, Literature and Philosophy (London: Cavendish Publishing Ltd, 2002)Google Scholar. On the relationship between law and aesthetics, and the implication of imagery in law's authority, see Douzinas, C and Nead, L (eds) Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago, Ill; London: University of Chicago Press, 1999) esp ch 1Google Scholar.

9. Although this paper focuses exclusively on the woman judge, Clare McGlynn suggests a similar approach can be used to explore the ‘multiple sites of discrimination’ within the ‘closed’ judiciary: see McGlynn, C ‘Judging Women Differently: Gender, the Judiciary and Reform’ in Millns, S and Whitty, N (eds) Feminist Perspectives on Public Law (London: Cavendish Publishing Ltd, 1999) pp 87–88 Google Scholar; See further McGlynn, n 2 above; and Bems, S To Speak as a Judge – Difference, Voice and Power (Dartmouth: Ashgate, 1999 Google Scholar) esp ch 9.

10. A stance of denial in relation to a range of aspects of the adjudicative process is introduced and developed by Duncan Kennedy in A Critique Of Adjudication (fin de si2cle) (Cambridge, Mass: Harvard University Press, 1997) esp ch 8.

11. Cole, B Trends in the Solicitors’ Profession–Annual Statistical Report 2000 (London: Law Society, 2000) p 60 Google Scholar. In The Woman Lawyer (n 2 above), Clare McGlynn offers a detailed analysis of the statistical information on women lawyers, relying on a number of studies, including the Law Society's Trends in the Solicitors’ Profession – Annual Statistical Reports, research undertaken by the Young Women Lawyers (YWL) and Bar Council figures. Many of the figures I rely upon here derive from her book, updated where appropriate.

12. Cole, n 11 above, pp 65–66.

13. Sommerlad, H ‘The Myth of Feminisation: Women and Cultural Change in the Legal Profession’ (1994) 1 Int J of the Legal Profession 31 at 34CrossRefGoogle Scholar.

14. McGlynn, n 2 above, p 89. See also Malleson, K The New Judiciary - The Eflects of Expansion and Activism (Dartmouth: Ashgate, 1999) pp 106–125, esp pp 115–116Google Scholar.

15. In 1999–2000, 53.1% of new qualified solicitors were female: Cole, n 11 above, p 72.

16. The gap decreases slightly to 87.4% compared with 64.8% after 2–29 years and after 30 or more years experience to 66.1% to 58.8% of men and women respectively are partners: Cole, n 11 above, p 20.

17. Lord Chancellor ‘Speech to the Association of Women Solicitors’, London, 23 March 2001, reproduced at http://www.lcd.gov.uk/speeched2001/lc230401.htm.

18. Lord Chancellor ‘Speech to the 1998 Women Lawyer Conference’, London, 25 April 1998, reproduced at http://www.lcd.gov.uk/speeches/1998/1998fr.htm.

19. This figure is correct as of 1 July 2002, and is taken from the Lord Chancellor's Department website at http://www.lcd.gov.uk/judicial/womjudfr.htm.

20. This compares favourably with 1998–89, when none of the 14 appointments to the High Court and above were women. Overall, in 2000–01,25.6% of judicial applicants and 28.4% of judicial appointments were women, compared with 24.2% and 26.9% respectively in 1999–2000: LCD press notice ‘Progress Towards Greater Diversity in the Judiciary’ 408/01,28 November 2001; LCD press notice ‘Judicial Appointments – Annual Report Sees Rise in FemaleEthnic Minority Appointments’ 366/01,30 October 2001. The Judicial Appointments Annual Reports 2000–01, 1999–2000 and 1998–99 are reproduced at http://www.lcd.gov.uk/judicial/jaarepfr.htm.

21. Figure taken from LCD website, n 20 above. This compares with approximately 21% in Australia (Australian Institute of Judicial Administration, figure correct as of 30 May 2002, available at http://www.aija.org.au/WMNjdgs.htm). In Canada, the number of women on the bench has risen from 9% in 1990 to 20% in 1998, including three women on the Supreme Court and a Female Chief Justice. Further, over 33% of federal appointments in 1998 were female, an increase from 19% in 1993 (The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada, Speech at the Ceremonies Marking rhe Opening of the Courts, Quebec, 9 September 1998, reproduced at http://www.canada.justice.gc.ca/en/news/sp/1998/opening.html). Generally, there are more women in European jurisdictions with a so-called ‘career judiciary’, where (co)incidentally the judiciary has less power or prestige. In France, for example, women make up nearly 50% of the judiciary, although, significantly, in the higher ranks men outnumber women two to one: B McKillop ‘The Judiciary in France’ Unpublished Research Paper, Faculty of Law, University of Sydney in Malleson, n 14 above, pp 123–125.

22. On a hostile legal culture, see further, for example, H Sommerlad and Sanderson, P Gender, Choice and Commitment: a study of woman lawyers (Dartmouth: Ashgate, 1998)Google Scholar; and McGlynn, n 2 above (UK); Thomton (1996), n 4 above (Australia); Kay, F M and Brockman, J ‘Barriers to Gender Equality in the Canadian Legal Establishment’ (2000) 8 Feminist LS 169 Google Scholar (Canada); Resnik, J ‘Gender Bias: From Classes to Courts’ (1993) 45 Stan LR 2195 (US)CrossRefGoogle Scholar.

23. Griffith, JAG The Politics of the Judiciary (London: Fontana Press, 5th edn, 1997) p 7.Google Scholar

24. See, for example, McGlynn, n 2 above; Law Society Judicial Appointments Commission (London: Law Society, 11 January 2000) and Broadening the Bench – Judicial Appointments (London: Law Society, 9 October 2000), both reproduced at http://www.Iawsociety.org.uk (England and Wales); Thomton (1996), n 4 above (Australia); Kay and Brockman, n 22 above (Canada); B Kruse ‘Luck and Politics: Judicial Selection Methods and their Effect on Women on the Bench’ (2001)16 Wis Women's LJ 67; and B Simon ‘The Underrepresentation of Women on the Court of Appeals for the Federal Court’ (2001) 16 Wis Women's LJ 113 (US).

25. See Malleson, n 14 above, pp 103–105, 233–234. While it is tempting to assume that Griffith's ‘typical’ judge has largely been replaced by a more fashionable ‘redbrick’ version, in terms of the composition and background of the senior British judiciary in particular, he continues to hold a tenacious grasp upon the reins of judicial power. Whether his views on adjudication have become less traditionally ‘Griffithesque’ is a matter considered below.

26. Griffith, n 23 above, p 22.

27. Robert Sayer, former Law Society President, in C Palmer ‘A job, old boy? The school ties that still bind’Observer, 11 June 2000. The Law Society announced its boycott of the system of ‘secret soundings’ in September 1999 (Law Society press release ‘Outdated system for judicial appointments’ 28 September 1999). a move severely criticised by the Lord Chancellor as a ‘disservice’ to Law Society members: LCD press notice ‘Increasing diversity in judicial appointments’ 385/00, 31 October 2000. The Lord Chancellor has repeatedly reaffirmed his commitment to the ‘consultation process’, distinguishing it from the non-existent albeit ‘sinister’ sounding term ‘secret soundings’: see, for example, LCD press notice ‘First Judicial Appointments Commissioner Named’ 103/01,15 March 2001; Lord Chancellor, n 18 above; Lord Chancellor ‘Speech to the Minority Lawyers’ Conference’, London, 29 November 1997, reproduced at http://www.lcd.gov.uk/speeches/1997/speechfr.htm.

28. TMS Consultants Without Prejudice? Sex Equality at the Bar and in the Judiciary (London: Bar Council and Lord Chancellor's Department, 1992) in McGlynn, n 2 above, p91.

29. Described by the Lord Chancellor as an ‘informed many’, as opposed to a ‘favoured few’, among the judiciary and legal profession: n 18 above.

30. As defined by the Lord Chancellor in his speech to the 1998 Women Lawyer Conference, n 18 above. On the consultation process, see further the LCD website at http://www.lcd.gov.uk/judicial/appointments/jappinfr.htm.

31. McGlynn, n 2 above, pp 90–91.

32. Comment by Lord Bridge in 1992, reproduced by Helena Kennedy in Eve was Framed – Women and British Justice (London: Chatto & Windus, 1992) p 267.

33. Sir Leonard Peach An Independent Scrutiny of the Appointment Processes of Judges and Queen's Counsel in England and Wales (London: Lord Chancellor's Department, 1999) p 27, recommendation 13, reproduced at http://www.lcd.gov.uWjudicial/peachhdexfr.htm.

34. A move welcomed by Sir Leonard Peach and acknowledged by Michael Napier, Law Society President, as a ‘step in the right direction’: LCD press notice ‘First Judicial Appointments Commissioner Named’ 103/01,15 March 2001; LCD press notice ‘Lord Chancellor seeks First Commissioner for Judicial Appointments’ 376/00, 24 October 2000; Law Society press notice ‘Law Society Response to First Judicial Appointments Commissioner’, 15 March 2001. This was followed by the appointment of seven commissioners in December 2001 (LCD press notice ‘Commissioners for Judicial Appointments Appointed’ 433/01, 12 December 2001) who, with the First Commissioner, will conduct an ongoing audit of appointments of silks and to the judiciary. The Lord Chancellor will consider consultation on the possibility of an Appointments Commission ‘in the full sense’ following the publication of the First Commissioner's Annual Report in Autumn 2002: Lord Chancellor ‘Speech to the IBA World Women Lawyer Conference Judges Session’ London, 1 March 2001, reproduced at http://www.lcd.gov.uk/speeches/2001/lc010301.htm.

35. Kamlesh Bahl EOC Evidence to the Home Affairs Committee Minutes of Evidence and Appendices, Third Report of Session 1995–96, vol 11, p 211, in McGlynn n 2 above, p180.

36. Kennedy, n 32 above, p 267.

37. F Burton ‘What now Portia?’ (1998) Sol Jo 784–785.

38. Female barrister Letter to Independent, 26 November 1990, in McGlynn, n 2 above, p150.

39. John Taylor, quoted in A Doran ‘Lawyers hold no brief for equality code’Daily Mail, 7 November 1995, reproduced in McGly, n 2 above, p 150.

40. Malleson, n 14 above, p 116.

41. Lord Chancellor ‘Speech to Minority Lawyers Conference’, n 27 above.

42. Lord Chancellor ‘Speech to the Association of Women Barristers’, The Barbican, London, 11 February 1998, reproduced at http://www.lcd.gov.uk/speeched1998/1998fr.htm.

43. See K Malleson and F Banda Factors Affecting the Decision to Apply for Silk and Judicial OfJice Lord Chancellor's Department Research Series 2/00 (London: Lord Chancellor's Department, 2000), reproduced at http://www.lcd.gov.uk/research/2000/200es.htm. The publication of Judicial Appointments in England and Wales–The Appointment of Lawyers to the Professional Judiciary – Equality of Opportunity and Promoting Diversity (London: Lord Chancellor's Department, 2001), reproduced at http://www.lcd.gov.uk/judicial judequal.htm, sets out the Lord Chancellor's approach, policies and aspirations toward equality and diversity in the judicial appointments process, may represent a first step in this direction.

44. See further, B Hale ‘Equality and the Judiciary: Why should we want more Woman Judges? [2001] PL 489. See also the wellcited arguments of Bertha Wilson in favour of a more diverse judiciary: ‘Will Women Judges Really Make a Difference? (1990) 28 Os HLJ 507.

45. See esp C Menkel-Meadow ‘Portia in a Different Voice: Speculations of a Women's Lawyering Process’ (1985) 1(1) Berkeley Women's LJ 39 and ‘Portia Redux: Another Look at Gender, Feminism, and Legal Ethics’ (1994) 2 Va J SOC Pol'y & Law 75. But cf I Ward ‘When Mercy Seasons Justice: Shakespeare's Woman Lawyer’ in C McGlynn (ed) Legal Feminism: Theory and Practice (Aldershot: Dartmouth, 1998) pp 63–83; and J M Cohen ‘Feminism and Adaptive Heroism: The Paradigm of Portia as a Means of Introduction’ (1990) 25(4) TulsaLJ 657.

46. Gilligan, C In a Different Voice – Psychological Theory and Women's Development (Cambridge, Mass: Harvard University Press, 1982; repr 1993) pp 24–63.Google Scholar

47. Menkel-Meadow (1985), n 45 above, pp 46–47.

48. Menkel-Meadow (1985), n 45 above, pp 54–55.

49. See, for example, L Bender ‘From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law’ (1990) 15 Vt L Rev 1; N R Cahn ‘Styles of Lawyering’ (1992) 43 Hastings LJ 1039 and response by A Shallack ‘The Feminist Transformation of Lawyering: A Response to Naomi Cahn’ (1992) 43 Hastings LJ 1071; S Ellman ‘The Ethic of Care as an Ethic for Lawyers’ (1993) 81 Geo LJ 2665. For an interesting related discussion in the context of legal education, see P Spiegelman ‘Integrating Doctrine, Theory and Practice in the Law School Cumculum: The Logic of Jake's Ladder in the Context of Amy's Web’ (1988) 38 J Legal Educ 243.

50. On the critique of essentialism in feminist legal scholarship, see J Conaghan ‘Reassessing the Feminist Theoretical Project in Law’ (2000) 27(3) J Law & SOC’ y 351. On its implications for Gilligan's ‘different voice’ and the ethic of care, see M Drakopoulou ‘The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship’ (2000) 8(2) Feminist LS 199.

51. Gilligan ‘Letter to Readers’, n 46 above, pp xiii, 2.

52. See, for example, Sevenhuijsen, S Citizenship and the Ethics of Care trans Savage, L (London: Routledge, 1998)CrossRefGoogle Scholar, who argues that a re-evaluation of the ethic of care could transform our conceptions of justice, morality and politics. See also the works of Tronto, J C Moral Boundaries: A Political Argument for an Ethic of Care (London: Routledge, 1993)Google Scholar; and Held, V Feminist Morality: Transforming Culture, Society and Politics (Chicago: University of Chicago Press, 1993)Google Scholar.

53. Although cf the application of the ethic of care in an adjudicative context by West, R Caring for Justice (New York: New York University Press, 1997)Google Scholar.

54. Berns, n 9 above.

55. Berns, n 9 above, p 13.

56. Berns, n 9 above.

57. On the relationship between the ‘self and law, see esp P Schlag ‘The Legal Self in PSchlag The Enchanrmenr of Reason (Durham, NC: Duke University Press, 1998)p 126. Interestingly, Schlag is silent on the gender implications of this process. I am suggesting that the ‘legal self, at least in his adjudicative role, is recognisably male: see further Thornton (1996), n 4 above, pp 75–79, 268–271, on the ‘technocratic’ approach of legal education. See also, on the ‘institutionally managed trauma [which] gives birth to a confonning or believing soul’, P Goodrich ‘Of Blackstone's Tower: Metaphors of Distance and Histories of the English Law School’ in P Birks (ed) What are Law Schools For? (Oxford: Oxford University Press, 1996) p 59.

58. See, esp Thornton (1996), n 4 above.

59. Andersen, n 1 above, p 63.

60. The image of the judge as robed and wigged is a particularly prominent feature of popular cultural conceptions of the British judge, and is in marked contrast to the ‘trendy’ US judge of TV courtroom drama. There is no doubt that these more diverse images of judging impact upon public understanding and may to some extent effect a shift in traditional conceptions of the judge. This is. perhaps, reflected in the ongoing debate about the proposed abolition of the barristers’ and judges’ wigs in the UK, recently re-ignited by the threats of solicitors, with rights of audience in the High Court, who ‘feel their bare heads mark them out as second-class advocates’ to seek a judicial review. The Lord Chancellor has indicated that such an expansion would be ‘a step in the wrong direction. Instead, it would be better if both branches of the profession sported just the hair nature gave them’ and that he would be ‘most surprised’ if judges, especially in the civil courts, did not follow suit: C Dyer ‘Irvine prepared to drop judges’ wigs’Guardian, 30 June 2001; R Verkaik ‘Irvine says wearing wigs in court is out-dated’Independent, 30 June 2001.

61. ‘Us’ may capture a range of communities here. On the one hand, there is the legal community, that is, law students, teachers, practitioners and judges. There is evidence to suggest that they hold on strongly to the notion of the depersonalised dehumanised judge See esp Dworkin, n 5 above; but see also Pieme Schlag on the role of the idealised judge in legal education in ‘The Legal Form of Being’ in P Schalg Laying Down the Law: Mysticism, Fetishism, and rhe American LR gal Mind (New York: New York University Press, 1996) ch 9. However, I am also suggesting that the Herculean judge, while perhaps not recognised such, is also a feature of popular culture. Hence, for example, the media outcry following Lord Hoffman's failure to disclosure his links with Amnesty International during the Pinochet litigation: H Young ‘Pinochet may, or may not, clear off. But Hoffmann certainly should’Guardian, 19 January 1999. But cf KHughes ‘Another Pinochet atrocity – this time by the media’Guardian, 20 January 1999. See also Duncan Kennedy's discussion of public perceptions of adjudication, n 10 above, ch 1. Thus, while recognising differences in the image of the judge across these different communities, I am arguing that the features I associate with Hercules are generally widely held in popular culture, albeit as ideals rather than as actual perceptions of what judges do.

62. Berns, n 9 above, p 202.

63. G Gall The Cadian Legal System reprinted in ‘Foreword’ Canadian Judicial Council Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998) p iii.

64. Kennedy, n 10 above, p 3.

65. Kennedy, n 10 above, p 4.

66. ‘The function of the legislature is to make the law, the function of the administration is to administer the law and the function of the judiciary is to interpret and enforce the law’: Lord Greene (1944) The Law Journal 351, cited in Malleson, n 14 above, p 8. The normative grip of this passive conception of the judge is well illustrated by the tendency to pose the creative judge as a jurisprudential and political problem. See, for example, R Cotterrell ‘The Problem of the Creative Judge …’ R Cotterrell in The Politics of Jurisprudence (London: Butterworths, 1989) ch 6.

67. See Schlag, n 57 above, pp 127–129.

68. See R M Cover ‘Violence and the Word’ (1986) 95 Yale LJ 1601.

69. Pierre Schlag uses the image of the ‘frame’: n 57 above, p 135.

70. Lord Reid ‘The Judge as Law Maker’ (1972) 12 JSPTL 22.

71. Hart, H L A The Concept of Law Bullcch, P A and Raz, J (eds) (Oxfod Oxford University Ress, 2nd edn, 1994)Google Scholar. For a recent affirmation of the traditional Wan position by legal positivist, Matthew Kramer, in the face of an attack on positivism by David Dyzenhaus, see M Kramer ‘Dogmas and Distortions: Legal Positivism Defended’ (2001) 21 Oxford J LS 673 at 675–679, mponding to D Dyzenhaus ‘Positivism's Stagnant Research Programme’ (2000) 20 oxford J LS 703, itself a review of Kramer's book In Defence of bgal Positivism: Law Wirhour Trimmings (Oxford: Oxford University Press, 1999).

72. See also J Raz The Aurhoriry of Law: Essays on Law and Moraliry (Oxford: Clarendon Press, 1979) ch 10.

73. This argument is effectively made by Kenneth Einar Himma ‘Judicial Discretion and the Concept of Law’ (1999) 19 Oxford J LS 71.

74. Dworkin (1986), n 5 above, p 255. On Dworkin's thesis as a ‘Noble Dream’ described in opposition to ‘The Nightmare’ of unlimited judicial creativity, see Hart, H L A. ‘American Jurisprudence through English Eyes: The Nightmare and the Noble Dream’ in H L A Hart Essays in Jurisprudence and Philosophy (Oxford Oxford University Press, 1983) p 123Google Scholar. See also, for a concise assessment and rebuttal of adjudicative fairy tales, Noble Dreams and Nightmares, Simon Lee Judging Judges (London: Faber and Faber Ltd, 1988) chs 1–5.

75. See here Duncan Kennedy's characterisation in A Critique of Adjudication, n 10 above, of Dworkin's account of adjudication as dependent upon a ‘coherence’ strategy, in which disputes are resolved by ‘treating the whole existing corpus of rules … as the product of an implicit rational plan, and asks which of the rules proposed best furthers that plan’: p 33.

76. See Kennedy, n 10 above, chs 9–11.

77. For a range of essays assessing Kennedy's contribution to theories of adjudication see ‘Critical Legal Studies (Début de Siècle): A Symposium on Duncan Kennedy's A Critique of Adjudication‘ (2001) 22 Cardozo LR 701.

78. These concerns emerge particularly in recent discussion concerning the impact and implications of the Human Rights Act 1998 and the role of the judiciary, where much of the debate has been framed in terms of the proper limits of adjudication in a legislative context. The underlying assumption is that one which denies judges a law-making-legislative role: Malleson, n 14 above, pp 24–35; and McColgan, A Women Under Law: The False Promise of Human Righrs (London: Longman, 2000)Google Scholar. On the instability of the legislatiodadjudication distinction, see Kennedy, n 10 above, esp ch 2.

79. See Schlag, n 57 above, p 126.

80. Andersen, H C ‘The Emperor's New Clothes’ in Hans Andersen's Fairy Tales Lewis, N (trans) (London: Penguin, 1981) pp 32–40 Google Scholar. This analogy with Andersen's equally famous tale is not uncommon in a judicial context. For example, Simon Lee, in his book review of Dworkin's Law's Empire, ‘Law's British Empire’ (1988) 8(2) Oxford J LS 278, asserts that his students are na'ive enough to dismiss what they regard as the wilful blindness of jurisprudential reviewers of Law's Empire who praise Dworkin's cloak of integrity:’… They cry out that Dworkin is streaking through the jurisprudential stratosphere wearing no clothes’ (at 278). My argument is not just that the emperor/judge is wearing no clothes, but that it is our imagination which enables us to believe (albeit at the same time disbelieving) that he is. See further below.

81. Andersen, n 80 above, p 32.

82. Andersen, n 80 above, p 40.

83. On the importance of the imaginary domain, see Cornell, D The imaginary domain: abortion, pornography and sexual harassment (New York: Routledge, 1995)Google Scholar.

84. On the exclusion of an awareness of the impact of gender in some (traditional) understandings and critiques of the superhero judge, see, for example, Joanne Conaghan's engagement with Duncan Kennedy in ‘Wishful Thinking or Bad Faith: A Feminist Encounter with Duncan Kennedy's Critique of Adjudication’ (2001) 22 CardozoLR 721 and ‘Review of Duncan Kennedy's Critique of Adjudication’ (2000) 27 J Law & Soc'y 328 (book review); and also Berns, n 9 above.

85. Kennedy, n 10 above, p 3. But cf Robert Cover's portrayal of, an arguably re-habilitated, ‘Hercules’ as female (n 65 above, pp 1626–1628). which, according to Judith Resnik, provides an ‘antidote’ to our collective ideological imaginings of a necessarily male judge: ‘On the Bias: Feminist Reconsiderations of the Aspirations for our Judges’ (1987) 61 SCLR 1887 at 1910.

86. Andersen, n 1 above, p 67.

87. On the (de)humanisation of the judge see Sandra Bems’ (n 9 above) discussion of an abandoned attempt to ‘humanise’ an Australian court. ‘Its success, and not its failure, necessitated its abandonment… The naked humanity of an unrobed judge, revealed as an ordinary human being, can and did become a lightening rod for anger and frustration of many before the court’: p 208. But cf Brenda Hale, n 44 above, arguing that the effect of the wig is not to ‘dehumanise’ the (woman) judge but to humanise them into a man, to ‘deny us our femaleness let alone our femininity’: p 497.

88. On the ‘siren call’ of ‘exceptional’ success in a male world, see Helena Kennedy in McGlynn, n 2 above, p vi. On ‘queen bees’ and other images adopted by women to ensure their equivocal acceptance within the legal academy: the ‘body beautiful’, the ‘adoring acolyte’, the ‘dutiful daughter’, see Thomton (1996), n 4 above, pp 106–129.

89. Graycar (1995) n 4 above, p 269 (footnote omitted).

90. L'Heureux-Dubé, C ‘Outsiders on the Bench: The Continuing Struggle for Equality’ (2001) 16 Wis Women's LJ 15 at 21.Google Scholar

91. Bems, n 9 above, p 33. See further below and also, for example, the challenge to Bertha Wilson by REAL (Real, Equal, Active for Life) Women following her speech at Osgoode Hall Law School (n 44 above) in which she considered the extent to which women judges will make a difference. It seems simply raising the possibility that women might bring alternative perspectives to their judicial role was enough to suggest that Justice Wilson was ‘playing politics and not being impartial’: REAL Women Letter to the Editor Toronto Star, 24 February 1990, quoted in Graycar (1998). n 4 above, p 8.

92. L'Heureux-Dubé n 90 above, pp 22–30.

93. It is interesting to note in the examples below that despite the diversity of jurisdictions involved, the image of judge appears to embody and exclude similar characteristics and traits.

94. B Naylor ‘Pregnant Tribunals’ (1989) 14(1) Legal Service Bull 41. For further discussion of this case, those below and others involving non-white male judges, see, for example, M Minow ‘Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors’ (1992) 33 W & MLR 1201; L'Heureux-DubC, n 90 above; Graycar (1998). n 44 above, p 4; and McGlynn; n 9 above, p 104.

95. Blank v Sullivan Cromwell 418 F Supp 1,4(SDNY 1975) in L'Heureux-DubC, n 90 above, p 22.

96. R v S(RD) [1997] 3 SCR 484, available at http://www.scc-csc.gc.ca. The decision of the Nova Scotia Supreme Court (Trial Division) and Court of Appeal was overturned by a majority of the Canadian Supreme Court. See further R Delvin ‘We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v R.D.S’ (1995) 18 Dalhousie LJ 408 for criticism of the lower courts’ judgments as, inter aha, an example of ‘an emerging pattern whereby women who are beginning to “make it” in the higher echelons of legal bureaucracies are constructed as presumptively partisan’: at 443, n 178.

97. [1999] 1 SCR 330. See further L'Heureux-DubC, n 90 above 90, pp 24–26, and text of the Canadian Judicial Council’ s reprimand of Mr Justice McClung and response to the complaint by REAL Women of Canada, available at http://www.cjc-ccm.gc.ca/english/news-releases.htm.

98. L'Heureux-Dubé, n 90 above, p 28.

99. See, for example, Thornton (1996), n 4 above, p 26.

100. Thomton (1996), n 4 above, pp 166–167.

101. McGlynn, n 9 above, pp 97–98, applying Jones, K ‘On authority: or, why women are not entitled to speak’ in Pennock, J R and Chapman, J (eds) Authority Revisited (London: New York University Press, 1987) p 152.Google ScholarPubMed

102. Thomton (1996), n 5 above, p 3. See further and cf narratives and testimonies on the exclusion and marginalisation of the woman lawyer within the legal profession and academy in Thornton and McGlynn, n 2 above.

103. Graycar (1995), n 4 above, pp 271–272 and (1998). n 4 above, pp 10–17. This is, of course, a common and wellexplored theme in feminist critiques of judicial decision-making See, for example, feminist discussion of judicial interpretations of the ‘reasonable man’: Conaghan, J ‘Tort Law and the Feminist Critique of Reason’ in Bottomley, A (ed) Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish, 1996) p 47.Google Scholar

104. Graycar (1995), n 4 above, p 276 and (1998), n 4 above, p 4.

105. Graycar (1998), n 4 above.

106. Minow, n 94 above, p 1207.

107. Berns, n 9 above, p 33.

108. Berns, n 9 above, p 34.

109. R v S(RD) [1997] 3 SCR 484, para 16.

110. Minow, n 94 above, p 1215.

111. R v S(RD) [1997] 3 SCR 484, para 42.

112. C L'Heureux-Dubé‘Making a Difference: The Pursuit of a Compassionate Justice’ Notes for an Address to the International Bar Association, Amsterdam, Netherlands, IB A Joint Session on ‘Women on the Bench’, 20 September 2000, on file with author.

113. Wilson, n 44 above, p 522; and K Malleson ‘Safeguarding Judicial Impartiality’ (2002) 22(1) LS 53 at 65. On bias, see further Antony, L M ‘Quine as a Feminist: The Radical Import of Naturalised Epistemology’ in Antony, L M and Witt, C (eds) A Minds of One's Own: Feminist Essays on Reason and Objectivity (Oxford: Westview Press, 1993)Google Scholar; Resnik, n 85 above; and Cain, P ‘Good and Bad Bias: A Comment on Feminist Theory and Judging’ (1988) 61 SCLR 1945.Google Scholar

114. Berns, n 9 above, p 8.

115. On the judge as (constrained) activist able to make strategic choices, see Kennedy, n 10 above, pp 182–184 and, generally, pp 157–212.

116. Berns, n 9 above, p 210.

117. On contextualised judging, see R v S(RD) [1997] 3 SCR 484; B Wilson in R v Morgentaler (1998); and R v Lavallee (1990), considered in detail by Elizabeth Halka in ‘Madam Justice Bertha Wilson: A ‘Different Voice’ in the Supreme Court of Canada’ (1996) 35(1) Alberta LR 242; and Brenda Hale's recognition of the need for a ‘deeper’ and contextual enquiry into a mother's ‘implacable hostility’ or opposition to contact in Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48; B Hale ‘The view from Court 45’ (1999) 11(4) CFLQ 377 at 380–384. This issue has been recently considered by the Court of Appeal, which held, inter alia, that ‘Family judges and magistrates needed to have a heightened awareness of the existence of and consequence on children of exposure to domestic violence between their parents or other partners’:Re L(a child) (contact: domestic violence); Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (children) (contact: domestic violence) [2000] 2 FLR 334.

118. See generally Bems, n 9 above; and Resnik, n 85 above. On ‘entering the skin of the litigant’, see Wilson, n 44 above; Cain, n 116 above on ‘listening with connection’; and on the necessary relationship between justice and care, see West, n 53 above, ch 1.

119. Andersen, n 1 above, pp 69–70. Cf Disney's explicitly happy ending where the little mermaid manies her prince and sails off into the distance under a rainbow and Oscar Wilde’ s reuniting of the Fisherman, his soul and the little mermaid at the end of his short story (n 3 above, p 234).

120. Warner, n 7 above, p 398; and generally on the little mermaid, ch 23.

121. L'Heureux-Dubé, n 90 above, p 30.

122. James ‘Say Something’ on Laid (London: Phonogram Ltd, 1993).

123. The question of whether women judges speak with a ‘different voice’ remains hotly disputed among academics and women judges themselves, especially in the US, where attention has focused in particular, but not exclusively, on Sandra Day O'Connor. See, for example, S Sherry ‘Civic Virtue and the Feminine Voice in Constitutional Adjudication’ (1986) 72 Va LR 543; but cf S D O'Connor ‘Portia's Progress’ (1991) 66 NYULR 1546; E Martin ‘Women on the Bench: A Different Voice?’ (1993) 77 Judicature 126; S Davis ‘The Voice of Sandra Day O'Connor’ (1993) 77 Judicature 134; R Ginsburg ‘Remarks for California Women Lawyers, September 22, 1994’ (1994) 22 Pepperdine LR 1; JM Aliotta ‘Justice O'Connor and the Equal Protection Clause: A Feminine Voice?’ (1995) 78 Judicature 232; S Abrahamson ‘The Woman has Robes: Four Questions’ (1984) 14 Golden Gate ULR 489; and, more recently, a collection of papers from the Symposium and Workshop on Judging at the University of California, Berkeley, Spring 2000 (2001) 16 Wis Women's LJ1 onwards. For a Canadian perspective, see for example, Wilson, n 44 above; and Halka, n 117 above; and in the UK, see, for example, Hale, n 44 above; and McGlynn, n 2 above, p 184.

124. Warner, n 7 above, p xvi.