Review: J. A. G. Griffith, The Politics of the Judiciary (1997)

I can’t help but feel ambivalent about this book. On the one hand, it has a number of flaws, some of which were unavoidable, but which were disappointing either way. On the other hand, the subject matter is significant enough to make it worthwhile reading despite its flaws, particularly for law students, since it examines how a lot of the abstract principles taught in the first year are put into practice in ways that might not be expected.

The first, unavoidable, flaw, is simply chronological; the first edition was published in 1977, the last in 1997. The changes that must have occurred between those editions are clear: there’s detailed discussion of judicial review procedures only introduced in 1977, not to mention extensive discussion of the Thatcher and Major governments. However, with the most recent edition ending just before the 1997 general election, it feels like there must now be as much missing from the book as there would have been if one read the first edition in 1997. Mention is made, for example, of the debate around incorporating the European Convention of Human Rights into English law, which of course happened just a year and a half later with the Human Rights Act 1998. This alone could probably have doubled the length of the book. Besides that, there is a lot that could potentially have been written about Labour’s anti-terrorism legislation, about the wars in Afghanistan and Iraq, about devolution, about the Good Friday Agreement. As I said, it’s unavoidable; the author died in May 2010, and can hardly be blamed for not writing a new edition on the Blair years while into his 80s.

The other flaw is that, for much of the book, it feels like more of just a list of facts than an analysis. Of course, it doesn’t take much on the part of the reader to start noticing patterns, but there are also contradictory results; it’s hard to know whether these disprove the author’s theory, whether there’s some well-defined exception to the general rule, or whether the theory is simply subtler than one might first have assumed. It’s not until the last chapter that, reviewing all the previous chapters, the data points are developed into a more explicit theory; and, particular since so much of this final chapter is referring back to cases discussed earlier, I can’t help but wonder if more explicit development of the theory throughout the book might have made it clearer.

The theory itself is, in the end, quite straightforward: the senior judiciary was, in 1994, overwhelmingly (95%) male, entirely white, primarily public-school-educated (80%) and Oxbridge-educated (87%), and averaging over 50 years old; when it is required to make decisions in the public interest, it does so on an understanding of the public interest that would not necessarily be recognized by those not falling into one or more of those categories. It’s something that would be uncontroversial to progressives of various kinds; however, it does have some subtleties. If one merely understands the judiciary as “conservative”, it doesn’t explain conflicts between the judiciary and the Thatcher/Major governments, or indeed within the judiciary itself (e.g., between the Court of Appeals and House of Lords). Distinctions thus need to be drawn between ‘conservatism’ as a policy of maintaining the status quo and ‘Conservatism’ as the policy of the Conservative Party, as well as a ‘conservative’ versus ‘creative’ model of judicial reasoning and statutory interpretation. For Griffith, there is little correlation between political positions and particular forms of reasoning: a conservative judge can often interpret a statute creatively; what matters in each instance is the underlying class interest in maintaining the status quo.

For me, the most useful part of the book was this demonstration of inconsistency, and what underlies it. Even the most conservative judges (at least in the UK) have long since ceased to pretend that they are merely ‘discovering’ the law rather than creating new law by applying it in new ways and new situations. However, the principles by which this is done are contradictory, and in particular the situations in which one or another principle ought to be used are left unclear; when is a literal reading, even an absurd one, valid, and when is it permissible to attempt to understand the broader intent of Parliament rather than their literal words? Griffith makes clear that these contradictions are not arbitrary, but that there is no objective choice between these principles, which are instead applied in a more-or-less opportunistic way to promote the judge’s understanding of the public interest.