Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices
Monash University Law Review, Vol. 37, No. 1, 2011
29 Pages Posted: 27 Jun 2015
Date Written: 2011
In Australia, magistrates and their courts have undertaken steps to make the disposition of cases more appropriate and more sensitive to the varied needs of defendants. One development is more engaged approaches to judging, which entails direct judicial interaction with court users, requiring judicial communication skills and perhaps greater emotional capacities such as empathy. Careful analysis of empirical evidence of judicial attitudes and practices in court identifies important links between conventional judging values, skills and actions and some elements of the newer forms of judging. This research identifies magistrates’ commitment to core judicial values such as impartiality, their views about skills and practices associated with more engaged judging, such as listening and empathy and their orientation to the social value of their work. The article then examines in-court behaviours, including the demeanours magistrates display towards defendants and the circumstances in which they look at and speak directly to defendants. The findings suggest apparent tensions between legitimacy based on a conventional judicial role in an adversary process and the legitimacy of more engaged, active judging. This research finds ways in which values and practices of less-adversarial judging can be incorporated within a relatively conventional understanding and performance of the judicial role.
Keywords: Judiciary, judges, judging, courts, magistrates, Australia, empirical research, skills, judicial impartiality, court observation, surveys, interaction, empathy, communication, listening, legitimacy, lower courts
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