George Walford: Judging the Judges

People who have newly met systematic ideology sometimes have difficulty in grasping the special sense in which the term “intellectual” is used. They tend to think that here, as in common usage, it is synonymous with “brainworker” and consequently are unable to accept propositions such as that the left wing tend to be intellectual, the right wing anti-intellectual.  They will point out, very reasonably,  that lawyers are generally regarded as intellectuals and lawyers as a body are not left wing. It is true that lawyers are brainworkers, but the practice of law proceeds according to established precedents, rules and regulations, not by that free use of intellect to follow the argument wherever it may lead that is the distinguishing mark of the intellectual as that term is used in s.i. The Sunday Times of 6 December 1981 carries an account of an article in the latest issue of “the respected academic quarterly, Modern Law Review,” which studies the thinking of the top British judges in connection with their decisions. (All quotations here are from the Sunday Times account).

The article makes it clear that the law lords – who are, in the popular use of the term, intellectuals par excellence – are not intellectuals as that term is used in s.i. It finds their arguments to be “sometimes superficial, simplistic, casual evasive or irrelevant, and often to rely more on assertion and repetition than on the reasoned exploration of alternative points of view.”

The authors of the Modern Law Review article have analysed in detail 58 cases decided by the law lords in 1979 and 1980 in order to determine not the effect of the judgment but the quality of the accompanying argument. ”By breaking down the law lords’ often long and elaborately argued judgments in order to see exactly how they are constructed, they can point to the core of the judgment and analyse the reason on which it is based. The judgments of some of the most senior law lords… are criticised for failing to give proper explanations or reasoned justification for their conclusions. Instead, suggest the authors, they employ a range of ‘discursive techniques’ by which they actually avoid addressing the key issues.”

It appears that what gives the judgements of law lords their strength is not at all the logical soundness of their reasoning but the authority with which the law lords. are invested – which is exactly what systematic ideology would predict for eidostatics, people identified with the overwhelmingly right-wing establishment.

from Ideological Commentary 10, January 1982.