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Gender, Race, Bias and Perspective: OR, How Otherness Colours Your Judgment

International Journal of the Legal Profession, Vol. 15, Nos. 1-2, pp. 73-86, 2008

Sydney Law School Research Paper No. 09/18

15 Pages Posted: 8 Apr 2009  

Reg Graycar

The University of Sydney Law School

Date Written: April 6, 2009

Abstract

This discussion considers assumptions about judges and judging and suggests that despite what is sometimes perceived as increasing diversity on the bench and in the legal profession, outsider decision makers' membership of the jurisprudential community is still marked by 'otherness'. The argument draws upon my ongoing interest in the law's concern with the concepts of 'objectivity', 'neutrality' and 'perspective'. I argue that the legal system is inherently suspicious of 'otherness' and most specifically so when 'others' occupy positions of 'judgement'. The consequence is to render decisions made by 'otherised' judges liable to attack for bias in a way that decisions made by insiders simply are not. The argument is illustrated by a review of a number of challenges made on the ground of 'bias' or recusal motions to judges whose failure to match the white Anglo hetero-normative standard of 'the judge' is seen as a limit on their ability to be 'impartial'. The examples used range across many jurisdictions, from Australia, Canada, the US and a challenge to the impartiality of a decision of the International Criminal Tribunal for the former Yugoslavia (ICTY).

Keywords: bias challenge, recusal, otherness, race, gender, perspective, judicial desicion-making

JEL Classification: K10, K30, K40

Suggested Citation

Graycar, Reg, Gender, Race, Bias and Perspective: OR, How Otherness Colours Your Judgment (April 6, 2009). International Journal of the Legal Profession, Vol. 15, Nos. 1-2, pp. 73-86, 2008; Sydney Law School Research Paper No. 09/18. Available at SSRN: https://ssrn.com/abstract=1374083

Reg Graycar (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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