Myths of merit. Judicial diversity and the image of the superhero judge

Abstract

This thesis is a critical analysis of reforms of the judicial appointments process which are designed to encourage judicial diversity. It does so by applying the concept of myth to law, and argues that because the judge is understood as a superhero, the definition of judicial merit has come to reflect this ideal, which is neither accurate nor sufficient. It neither reflects what judges do, nor adequately describes what it is that judges should do. Therefore it is argued that attempts to diversify the judiciary are limited by the image of the superhero judge, which, in this thesis, is described as myth, with distinct socio-cultural effects. It is argued that there are two potential methods of approaching judicial diversity. The first is diversity of form, which focuses on gender, ethnic background, different levels of physical ability and economic status of the individual. The second is diversity of thought, which focuses on achieving a judiciary diverse in terms of its experience of and approaches to the law. In order to argue that diversity of thought is preferable to diversity of form, this thesis discusses in depth the decision making processes of the most 'different' law lord, namely Baroness Hale, who, as the first female and the first academic law lord, represents both diversity of form and diversity of thought. This thesis argues that her difference is not a result of her gender, but a result of her different experiences with and approaches to the law. The argument put forward in this thesis is that in understanding the judge as superhero, identified in this thesis as the Herculean image of the judge, the role of the judiciary is limited. This thesis argues that the role of the judge has changed in the wake of the Human Rights Act 1998. The role of the judge has become more politicised, and as such it is necessary to revisit popular understandings of the judge. It is argued that the reforms to the judicial appointments process confirm the ideal of the superhero judge and reflect an expectation that the 'different’ judges, that is, judges from different backgrounds, will simply confirm to the superhero or Herculean ideal. This thesis then puts forward the image of Loki, the trickster god of Norse mythology, as a more attractive judicial image, arguing that the changes in the judicial role require an image of the judge which is more flexible and able to accommodate different experiences, understandings and approaches to the law.