Legal ideology, legal doctrine and the UK's top judges

Arvind, T T and Stirton, Lindsay (2016) Legal ideology, legal doctrine and the UK's top judges. Public Law, 2016 (July). pp. 418-436. ISSN 0033-3565

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Abstract

Most work on the UK's judiciary reflects the assumption that the institutional issues raised by attitudinal studies of the US Supreme Court are irrelevant to the UK because the UK's judiciary is not political. This article challenges those assumptions. We present an empirical and theoretical analysis of the 'doctrinal model' of judicial decision-making in the upper judiciary of the UK, that is to say, of the position that judges decide cases on the basis of doctrinal positions rather than political views, and argue that it has far more in common with the attitudinal model than is conventionally assumed. We elaborate upon this through an empirical analysis of decisions of the Law Lords on challenges to state bodies over a twenty-five year period, which estimates judges' ideological positions on a scale derived from doctrine. We find that (a) there are meaningful and measurable differences in judicial positions in key doctrinal controversies (b) these differences have an impact on the outcome of a significant minority of cases. Our results support the view that doctrinal positions are more salient than party-political ideology in the UK context, but also demonstrate that even faithful adherence to a doctrinal model does not affect the validity of the insights of the attitudinal model in relation to the role and impact of judges' personal views. We show that on a proper understanding, doctrinal adjudication raises the same questions of institutional structure and design emphasised by the attitudinal model, and that these questions assume particular significance given changes to the British judiciary's institutional role.

Item Type: Article
Keywords: Judges, Judiciary, Bayesian, Item Response Theory, Ideal Points
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: J Political Science > JC Political theory. The state. Theories of the state
J Political Science > JN Political institutions (Europe) > JN0101 Great Britain
K Law
K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0115 The legal profession
Depositing User: Lindsay Stirton
Date Deposited: 04 Mar 2016 07:13
Last Modified: 16 Jul 2019 09:24
URI: http://sro.sussex.ac.uk/id/eprint/59836

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Project NameSussex Project NumberFunderFunder Ref
Explaining the Impact of the Human Rights ActSGS/38960Nuffield FoundationUnset