Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Brónach Rafferty
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland.
In the aftermath of the deaths of both Justice Antonin Scalia of the U.S Supreme Court and Justice Adrian Hardiman of the Irish Supreme Court this year, there has been much discourse in both jurisdictions as to who should next be appointed to the judiciary. It is assumed that the next appointees to the court will have been practicing lawyers. However, is there not a case to be made for the legal academic as judge?
As I have alluded to in my most recent article, for the most part, the judiciary consists of a rather type specific grouping of people: privately educated, white, and mostly male.  Lawyers have a certain experience with the law in practice. Subsequently, the lawyer-judge develops, over the course of his education and experience, an individualized working conception upon which he will subconsciously rely.  And herein, it could perhaps be argued, lies the issue with lawyer-judges: it is their ‘working’ knowledge of the law in practice that serves to influence rationale and precedent in decisions, and it is the individualistic aspect of such a working conception of law that underlines the subjectivity of this understanding of law as had by lawyer judges. Furthermore, that it is a conception relied upon ‘subconsciously’ illustrates the way in which lawyers become part of an established way of thinking, a particular community of thought whereby thought process and actions are carried out without much attention given to the finer points of law. Little independent analysis or thinking outside the box is encouraged.
_It is this element of being part of the establishment that means that that the lawyer who becomes the judge becomes, as Pierre Schlag has written, “Accustomed, both individually and institutionally, to not noticing, not learning, not seeing, not thinking. It becomes a way of...life. If our jurisprudence becomes too silly to believe, we act as if we believed it.”  The lawyer-judge is accustomed to a particular way of thinking, thus the accepted way of thinking is this way of thinking, and he is unable to consider the ‘other’ that might exist. The law stagnates, becoming that which the lawyer judge says it to be irrespective as to whether or not it can be said to be intellectually valid.
The academic judge has no such qualms of thinking outside the box, as he or she is not as embedded a part of this legal community of practising law as the average lawyer might be. Although a part of the establishment to an extent, I believe him or her to exist on the periphery, which affords him or her with a different perspective, and enables him or her to gage with questions of law from a less involved viewpoint. The experience he or she has to offer the judiciary is gained from analysing and critiquing that which is said to be law and evaluating it based on its substantive intellectual merits. This presents an alternative interpretation to accepted practice and presents a greater scope by which to shape the law.
But what is the academic in relation to law? The academic takes on a more intellectual, holistic approach to the law ;his or her purpose being to unearth and decipher the various concepts, values and obligation of the society in which they live and operate. The academic engages more with the intellectual substance of the law with regards to the legal doctrine, institutions, a personnel that make up the law and the lawyers who operate within its realms. According to Allan C. Hutchinson, such academics within law can be separated to two separate classes, those who are ‘traditional intellectuals’, and those who are ‘critical intellectuals,’ which illustrates the two distinct ways in which legal academics go about their work. 
Hutchinson cites traditional intellectuals as being “content to work within the established paradigms and to identify with its general interests and ambitions,” considering themselves to be a part of the establishment to a degree, hence my assumption of their position at the periphery of such a community. Yet simply because they work within such established paradigms does not mean that they accept as gospel the way in which the law functions within these paradigms. Furthermore, if we interpret their work as a process of articulation, analysis and interpretation of legal issues, then such legal issues arising from the law are perhaps best looked at within the context of such established paradigms. Conversely, the critical intellectual is said to be “less committed to the status quo and seeks to question the benefits gained and the interests served by those established values and ideas,” again, emphasising the idea of the legal academic existing on the peripheral edge of the legalistic society.
Traditional intellectuals view themselves in the same community as lawyers and judges, while critical intellectuals place themselves outside of that framework. Yet in both instances of legal academic intellectual, each chooses to engage with the law in a way different to the legal lawyer. The legal academic doesn’t take the law simply as it is, but questions that of which it consists, and seeks to delve below surface lawyer. For a practising lawyer, practice requires that you take the law as it is given and fulfill the criteria and etiquette seen suitable for court. The practising lawyer cannot question the absurdity of that which he or she practises as it would be seen as his or her stepping above her place.
An academic lawyer in his or her capacity of judge could offer more innovative and creative ways of thinking about law, what law is, and that which can be done with the law. Furthermore, the academic judge could offer the potential to galvanise the intellectual weighting of the law. The academic’s different approach to legal thinking and writing could serve to rejuvenate that which currently exists, serving better improve our legal system. A similar opinion is opined by Lord Neuberger, President of the U.K. Supreme Court, who has previously stated that
“[t]he trouble with the conventional approach of the English judiciary to academic writing under a common law system is that the law either stultifies or it develops in an intellectually incoherent way. Common law judges risk falling into one of two traps. The first is to stick unimaginatively and unthinkingly to the principles and rule of the old cases despite great social, moral and technological changes, thereby throwing the law into disrepute as being completely out of touch and irrelevant. Alternatively, judges are tempted into deciding cases by what they see as the fair result, thereby throwing the law into disrepute because of intellectual vacuity and practical uncertainty.” 
However, there exists a discrepancy between the law in theory, and the law in practice, and this discrepancy works both ways. What the academic judge might have in intellectual capabilities, he or she may lack in the very working conception of the law that I have previously criticised, and may be unable to appropriately relate to and deal with people he must serve. Yet such experience for someone with such an intimate knowledge of the intricacies of the law is easy gained. Similarly, simply because a working lawyer judge thinks from a practical working knowledge of the law does not mean that he is not aware of academic criticisms of the law.
Therefore, perhaps it might be proposed that where the practical judge can offer a decision based on the knowledge of protocol and practical experience, the academic judge can offer a more intellectual analysis and evaluation of the intellectual credibility afforded to such a decision, the two serving to balance one another out, ushering in a partnership between legal practice, and legal academia, and serving to reduce the gap between the two branches of lawyers.
 Brónach Rafferty, ‘The Fallacy of Reasonablness’, http://www.pulj.org/the-roundtable/the-fallacy-of-reasonableness
 Ronald Dworkin (1998) Law’s Empire London: Fontana at 256.
 Pierre Schlag, ‘Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art) (2009) 97 Georgetown Law Journal 803 at 820.
 Allan C. Hutchinson, ‘Doing the Business: Judges, Academics, and Intellectuals’ (2010) 29 University of Queensland Law Journal 133 at 134.
 Lord Neuberger of Abbotsbury, Master of the Rolls, ‘Judges and Professors – Ships Passing in the Night’ speech given at the Max Planck Institute, Hamburg (9th July 2012) < https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/mr-speech-hamburg-lecture-09072012.pdf> at 21.
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