The code of conduct for judges attempts to regulate the behavior of judges. However, it fails to provide any guidance as to the regulation of judges’ emotionalbehavior. Judges, like other people, feel a broad range of emotions while hearing cases. They are bound to react to these emotional situations, but they are given almost no direction as to how to regulate their emotions. Sometimes, it leads to odd episodesin our courts. A section of lawyers may also be attributed the responsibility of such incidents; but, behavior of a judge largely determines decorum of the court.
The traditional model of judging expects judges to prevent the emergence of emotions or put emotions aside while conducting court proceedings. This model insists that a good judge should be able to successfully hide or restrain his/her emotions. The old script of judicial dispassion is rooted in notions of rationality and objectivity in court proceedings. In 1651, for example, Thomas Hobbes said that the ideal judge is “divested of all fear, anger, hatred, love, and compassion.”
Over the course of time, however, the notion of judicial dispassion has been moderated. Early twentieth-century legal realists, particularly Benjamin Cardozo, and a small group of judges at the end of the century, for example, Justice William J. Brennan, urged examining the interplay of “reason and passion” in judging. The CJP, Asif Saeed Khan Khosa, in his book titled ‘Judging with Passion’ seems to persuade fellow judges to judge with passion while maintaining judicial discipline. Our legal fraternity, thus,need to appreciate sane voices and dismantle the traditional model of the dispassionate judge. Our legal profession, in fact, needs to produce emotionally disciplined lawyers (read would-be judges).
According to a psychologist James J. Gross, “emotion regulation” is expected from a good judge. Under both the traditional “dispassionate” account of judging and the more recent moderate conception of “emotionally balanced judging”, judges are expected to manage interaction between passion and reason to reach a balanced decision. Notwithstanding this expectation, the subject of ‘judicial emotions’or ‘regulating judicial behavior’ is neither taught in law schools nor in our judicial academies. The bar councils fail to prescribe such courses for lawyers as well. Our legal culture apparently fails to appreciate the value of intelligent “emotion regulation”. On the contrary, our judges are expected to simply suppress or restrain their emotions even in extremely emotional situations arising in the court.
It is scientifically established that the suppression of emotions damages the thinking process and increases the influence of the suppressed emotions on one’s judgment
According to Gross, emotion regulation encompasses “what emotions we have, when we have them, and how those emotions are experienced or expressed.” So, in order to regulate emotions more effectively, judges should engage in the study of “emotional regulations” alongside their understanding of the law. Equipped with the strategies of emotional regulation, judges couldhandle emotional situations in a cool and composed manner.
The traditional model of judicial behavior needs to be re-examined in light of the latest scientific studies on emotional regulation. The traditional assumptions that judges can manage emotionseasily or they should hide emotions successfully are misplaced. The advanced psychological studiesdemonstrate that emotional regulation is a complex phenomenon.Even common sense informs that hiding one’s emotions is (almost) impossible. So, lawyers and litigants should not demand from judges to meet these expectations.
It is scientifically established that the suppression of emotions damages the thinking process and increases the influence of the suppressed emotions on one’s judgment. It also effects overall health and happiness of a human being. A more engagedapproachwould, thus, prepare judges to identify their emotions and learn about their impact on their judgment. This approach would equip judges to employ emotions skillfully to conduct judicial proceedings in a sober and effective manner-the hallmark of a good judge.
Our judges are angered in courts, resulting in a boycott of court proceedings and, thus, a delay in the delivery of justice. Judges sometimesencounter rude behavior. They are exposed to false statements and concoctedstories. The institutional limitation of judges to fix the ills of society may make them depressed and frustrated. Thus, we should not expect that judges should get mum or mute. Rather, the legal profession should encourage judges to employ their emotions in an appropriate manner. Engaging or regulating emotions, in my opinion, would enable judges to handle emotionalsituations more effectively. Judicial “emotion regulation”would, in fact, improve judicial behavior as well as the quality of judging.It would strengthen the working relationship between the bench and bar-that is essential for the proper functioning of any judicial system.
The writer is the Managing Partner of the Jurist Panel
Published in Daily Times, March 10th 2019.