Detailing Judicial Difference

Abstract

In January 2004 Baroness Brenda Hale became the first woman to sit on the Appellate Committee of the House of Lords. Five years on, she has brought to her judicial role a lightness of touch that belies her increasingly significant impact on the court’s jurisprudence. Early forecasts that she would be “just a bit different” from her male companions have proved prophetic. However such assessments have stemmed primarily from a focus on her decision-making on a case-by-case basis. But what of her jurisprudence as a whole? This paper considers arguments for a more sustained and coherent methodological approach to analyses of Baroness Hale’s (and other judges’) jurisprudence as a framework through which to better understand and explore the potential of judicial difference and to better inform current debates about increasing judicial diversity in England and Wales.

Introduction

Baroness Hale’s appointment to the Appellate Committee of the House of Lords in January 2004 was always going to attract attention. And rightly so. The presence of a Lady amid the Lords was (and is) worthy of celebration as both a significant personal achievement and a long overdue strategic milestone in the quest for increased judicial diversity. Unsurprisingly, her appointment (unlike that of Lord Walker 2 years earlier (Kenney 2004, p. 190)) was widely reported in the British press; the novelty and uniqueness of her position intensifying both positive and negative expectations of her. Reviled by some as a “ferocious feminist” (Doughty 2003) and embraced by others as a “woman we loved in 2003” (Addley 2003) there was, as Baroness Hale herself quickly acknowledged, a general consensus that she was “just a bit different” from her male colleagues (Hale 2004). In fact, her ‘difference’ (whatever that might entail) and, more specifically, the extent to which she might make a difference (whatever that might mean) was—in those early days—as much feared as it was anticipated (Rackley 2006).

Five years later, while her solitary figure serves as an important reminder of the continuing absence of difference within the senior judiciary,¹ happily fears of a judicial apocalypse have come to nothing. Indeed far from being “trouble with a capital H” (Hardcastle 2004), Baroness Hale has, as many expected, secured her place as “one of our more thoughtful” law lords (Anon 2004). But what of her much trumpeted difference? To what extent, if at all, is Baroness Hale “just a bit different” from her companions in the House of Lords?

Here too first impressions seem to have been correct. There is, it seems, something distinctive about the first lady law lord; something—whether it is her academic background, her experience as a law commissioner, her sex or some combination thereof—makes her, and her opinions, simply different (Hale 2001, p. 500). A Guardian editorial, in October 2006, ‘In Praise of … Lady Hale’ put it like this:

An important ruling from the law lords this week has all the hallmarks of Britain’s first woman law lord, Brenda Hale … few would doubt that Lady Hale has brought into the highest court in the land a bracing new approach to women’s rights (Anon 2006).

Similarly, her biography in The Times ‘Law 100’ published in April 2008 remarks on “the different perspective” she brings to ruling which, it continues, “can only increase as her seniority … in the highest court in the land grows—and which is likely to come into its own next year when the supreme court starts to work” (Gibb and Spence 2008).² In support, it notes her comment in R (on the application of Gentle) v The Prime Minister ³ in which she openly sympathised with the families’ wish for an independent inquiry into the invasion of Iraq: “if my child had died in this way, that is exactly what I would want. I would want to feel that she had died fighting for a just cause, [and that, if not] then someone might be called to account”.⁴ Her empathetic openness did not go unrecognised by Rose Gentle (the mother of one of the soldiers killed). Talking to the press after the ruling, she drew attention to Baroness Hale’s comment:

Only Baroness Hale has had the decency to consider how my family and I feel that Gordon was killed; and we don’t even have the comfort of knowing that he died fighting for a just cause. It is as if the other eight law lords have not been able to contemplate the feelings of my family and myself (Gibb 2008).

To date such assessments (in both the media and academic commentary) have primarily been a response to, or grounded in, close textual analysis of Hale’s opinions on a more or less ad hoc, case-by-case basis.⁵ As a result, the cases chosen—while justified on the basis of their being indicative rather than definitive—are, perhaps, a better reflection of the particular research idiosyncrasies and expertise of the individual authors than of Baroness Hale’s jurisprudence. As such, any conclusions reached as to Hale’s ‘difference’ are open to the criticisms of cherry-picking; the argument that some cases are necessarily more receptive to, or inclined toward, such analysis and insights and that these are therefore more likely to be discussed than cases that point toward judicial similarity or sameness. Moreover, there is a risk that these arguments will confine the debate within ever-decreasing research circles, created by attempts to answer the questions that pervade conversations about women and judging: do women judges judge differently? What do we mean by difference? Where does it come from? And so on.

This concern provides the impetus for and backdrop to this paper. Taking as its starting point the recognition that there is something ‘different’ about Baroness Hale (as both she and others acknowledge) and the woman judge more generally (whatever this may be and wherever it may come from), the paper outlines suggestions for a more systematic analysis of judicial difference. It argues for the importance of situating analyses of Baroness Hale’s jurisprudence in the context of a more detailed understanding of how judges judge; of establishing a framework in which to ground further textual analyses of Baroness Hale’s (and other judges’) opinions. Its purpose is not to provide answers to questions about the existence or otherwise of judicial difference—how it might be defined, found, utilised and so on. Rather it seeks to create a space in which to focus on how we might best frame and better answer these questions. Its purpose is to re-orientate the debate; to move the focus away from difference per se and onto what difference is different to. As such, the point is not to look at Baroness Hale’s jurisprudence (simply) because it is hers, but rather as a means of exploring judicial reasoning and adjudication more broadly. In so doing, by taking a step back and considering why we started asking questions about difference, women and judging in the first place, we can begin to explore how answers to these questions might better inform current debates about increasing judicial diversity.

Defining Difference

In many ways the anticipation of difference which surrounded Baroness Hale’s appointment was not surprising. After all, for years women were excluded from the legal profession on this basis (Mossman 2006):

the peculiarities of womanhood, its gentle graces, its purity, its emotional impulses, its subordination of hard reason to sympathetic feeling … [mean that it would] be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood, that women should be permitted to mix professionally in all the nastiness of the world which finds its way into the courts of justice.⁶

Indeed ever since women judges started arriving on the Bench there have been questions both as to whether their ‘difference’ (usually meaning, quite simply, that they are women rather than men) might ‘make a difference’ to the processes and outcomes of judicial decision-making (Abrahamson 1984). In the US and Canada (in particular but not exclusively) the possibility that women judges might judge differently—usually understood as coming to different conclusions to their male counterparts—has been subject to ongoing statistical analysis.⁷ Later studies considered the possible impact the increased presence female judges might have on the processes of adjudication. Drawing on Carol Gilligan’s In a Different Voice (1982), Carrie Menkel-Meadow, for example, suggested that law and the legal system might “represent an embodiment of Jake’s voice—the male voice” (Marcus et al. 1985, p. 53). Viewed in this way the inclusion of more women—presumably speaking in something akin to Amy’s voice—could, Menkel-Meadow claimed, yield a radically different legal system; one that was less adversarial and more like a “conversation … a more co-operative, less war-like system of communication between disputants in which solutions are mutually agreed upon rather than dictated by an outsider, won by the victor, and imposed on the loser” (Marcus et al. 1985, pp. 54–55).⁸ In similar vein, Justice Bertha Wilson, when considering whether women judges will really make a difference, asserted:

if women judges through their different perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human. (1990, p. 522).

However, despite these many and varied projects, attempts to identify difference in the commentary and judgments of female judges have been both inconclusive and controversial.⁹ Although “intuitively obvious” (at least to some) (Aliotta 1995), the search for a distinctively female judicial voice has proved statistically elusive; studies supporting gendered differences in judging are equivocal at best (Elliott 2001, p. 42). In fact, women judges are more likely to be different to, and to disagree with, each other than their male colleagues (Belleau and Johnson 2007, p. 712). The irony of this is not lost on Deborah Rhode: “For centuries, women were excluded from the professions on the assumption that they were different; once admitted the assumption typically was that they were the same” (2003, p. 4). The language of difference in debates about women and judging (that is whether women judges are different as judges and/or whether they make a difference in relation to the processes and outcomes of judging) has, perhaps understandably, fallen out of favour. The fluctuation in mood amongst feminist legal scholars and judges is reflected in the titles of their articles and books: compare, for example, Justice Wilson’s gentle question, ‘Will Women Judges Really Make a Difference?’(1990) with Justice L’Heureux-Dubé’s ‘Making a Difference: The Pursuit of a Compassionate Justice’ (1997) and Clare McGlynn’s positive assertion, The Woman Lawyer—Making the Difference (1998) with Sally Kenney’s ‘Moving Beyond Difference: A New Scholarly Agenda for Gender and Judging’ (2006).

In the context of adjudication the mere suggestion of potential difference is not only contentious—“theoretically weak, empirically questionable and strategically dangerous” (Malleson 2003, p. 1)—but also risky; the strategic deployment of difference is grounded in “dangerous and unanswerable” myths (O’Connor 1991, p. 1557), which threaten not only to lure the unwary toward the quagmire of essentialism but which also work to effectively silence the polytonality of women’s voices (Harris 1990; Cain 1989–1990). Moreover, the possibility of judicial difference goes to the heart of Herculean understandings of the judge and judging; “to wish for otherness in adjudication represents a move in a profoundly dangerous game” (Berns 1990, p. 33)—as Justice Wilson (and others) discovered to their cost (Hunter 2006; Rackley 2007b). Compare, for example, attempts by the right-wing women’s group, REAL Women of Canada, to remove Justice Wilson from the Canadian Supreme Court on the basis that her tentative suggestion that women brought particular and different perspectives to their judicial role (Wilson 1990) revealed her as “a feminist judge who had violated her own judicial oath of impartiality and [who] was accordingly incapacitated from the execution of her judicial duties” (Anderson 2002, p. xiii)—with Phillips’ (2003) reaction to Baroness Hale’s appointment the House of Lords:

For despite the fact that she denied she was a hard-line feminist—“a soft-line feminist” is the most she would admit to—the fact is that she is the most ideological, politically correct judge ever to have been appointed to the highest court in the jurisdiction. As such, she will be bringing this destructive perspective to bear upon binding legal decisions over some of the most difficult and contentious issues around.

In their rush to critique, difference is elided with that other much feared political hot-potato—feminism (Kenney 2008, p. 105). After all, difference, sex, gender, feminism … they’re all the same. Aren’t they?

As Stuart Hall has noted, difference remains a “slippery and contested concept” (Archer 2004, p. 461). While female judges (together with ethnic minority, working-class, non-legal professional entrants) continue to earn the badge of being ‘different’ on arrival (and are likely to do so, at least in the judiciary of England and Wales, for some time yet), aesthetic differences alone are not enough. Moreover, a focus on these differences in isolation from each other prioritises and reinforces problematic binary divisions within understandings of difference, ignoring its multiple dimensions and the contingency of the concept itself. So understood, discussions of judicial difference should—but rarely do—distinguish between the woman (and/or non-Oxbridge, self-identified-lesbian and so on) judge as being ‘different’ in the sense of (still) being atypical in a judiciary that remains, on current figures, approximately 77% male¹⁰ (and, in so doing, crucially, allowing for the intersection of ‘differences’ with other (more?) important identity characteristics) and the difference (if any) the woman judge might (be able to) make to the bench—beyond simply adding to the mix—and which may or not be related to that which most obviously marks her out as ‘different’.

Against this backdrop, it is perhaps understandable that many female judges have a somewhat prickly response to being seen as ‘different’—especially when it is directly (and/or exclusively) associated with their sex and/or gender—dismissing it as “irrelevant” (McGlynn 1998, p. 190), “dangerous” (O’Connor 1991, p. 1557) or even denying it completely (Anon 2000). Baroness Hale is no exception. Understanding the moniker of ‘different’ in terms of both being different (that is atypical) and making a difference (that is judging in a different way) she, perhaps unsurprisingly, downplays the transformative potential of her difference as a female judge (Hale 2001, p. 500), and remains “a little worried and more than a little sceptical about arguments based upon the individual judge’s ability or even willingness to make a difference” (2001, p. 501).

And yet, as Baroness Hale notes, “although … we should not expect a woman judge to make a difference … having women judges can actually make a difference … on at least two levels, style and substance” (2005, p. 288). So viewed, it is difficult to let the notion of judicial difference go. Instinctive and impressionistic understandings and assumptions about judicial difference—particularly gendered difference—continue to shape and inform popular conversations about the woman judge (Kenney 2006, p. 4; Anon 2006). It may seem trite, you have heard it before: but there is more to difference than meets the eye. Which, of course, begs the question as to how one might find it.

Finding Difference

Flattering as the Guardian editorial “in praise of” Baroness Hale and her inclusion in The Times ‘Law 100’ are (especially in light of the highly personal attacks that appeared in the British press at the time of her appointment (Letts 2003)), that these newspapers recognise her, and her opinions, as ‘different’ is not all that surprising. As with other female judges before her, she was and is expected to be so. Simply put, her difference (or more specifically her sex) puts us on notice; it encourages us to both look for and—more importantly—find difference (Rackley 2006, p. 182). However, what is surprising (although no less pleasing for it) is that rather than evidencing dangerous subversive tendencies (see, e.g., Phillips 2003) Baroness Hale’s difference is welcomed as a positive addition to the collective jurisprudence of the House of Lords. The Guardian editorial continues:

[Lady Hale’s] success should encourage the lord chancellor’s slow progress in widening the gene pool of judges by looking for candidates—women and men, and in particular those from minorities—who can offer the right combination of intellectual excellence and diverse experience to the court that shapes English law. (Anon 2006)

But are these impressions of Baroness Hale’s difference sustainable? To what extent, if any, is she really all that different from the other law lords?

Hitherto, assessments of Baroness Hale’s difference have largely proceeded on an ad hoc, case-by-case basis. Typically they have taken the form of close, textual analysis—what Dermot Feenan has described as the “forensic study of judgments” (2008, p. 493)—of her decision-making and reasoning in a particular case, usually in comparison with that of her fellow law lords or judges.¹¹ Although the cases considered to date have included a fairly representative cross-section of her jurisprudence—including dissents, leading and concurring judgments from all levels of the court hierarchy—they have nevertheless tended to involve factual and/or legal situations where gender-related or gender-specific issues are more likely to arise—wrongful conception,¹² sexual violence,¹³ parental contact,¹⁴ the family home,¹⁵ and so on.¹⁶ Perhaps understandably, this has left conclusions as to the difference or otherwise of Baroness Hale and her jurisprudence open to the criticism that they are grounded in cases that have been ‘cherry-picked’ to support a particular point of view—that is, one that highlights her difference over sameness or that emphasises a gender dimension to the issue at hand.¹⁷ As such these cases are, it may be suggested, not only unrepresentative of her current (or indeed previous) caseload but, more worryingly, work to reinforce the assumed connection between Baroness Hale’s difference and her gender. The cases chosen are not simply reflective but also prescriptive; they encourage the artificial prioritisation of her gender over her other distinctive defining characteristics—in particular her family law expertise, her academic background and law reforming tendencies (all of which, of course, may or may not be to a greater or lesser extent related to her gender).¹⁸ As a result her difference is distorted and importantly, caught in what Colm O’Cinneide has in another context described as “a war of examples”, more easily dismissed (2004, p. 180).

However this criticism only goes so far. Clearly the insights of the ‘cherry-picked’ cases are meant to be indicative rather than definitive. They cannot alone reveal or establish broad or more general truths in relation to Baroness Hale’s jurisprudence and difference—let alone that of the woman judge more generally. However they do, nonetheless, reveal something about the processes of judgment in the particular case at hand. Difference, in this context, provides a point of departure rather any fixed destination(s). In so doing, it creates space for the recognition of previously unconsidered judicial narratives or adjudicative techniques or absence thereof. Indeed the approach requires direct and detailed comparison of each law lord or lady in turn—Lord Bingham’s opinion is read alongside Lord Hoffmann’s, whose opinion in turn is considered in light of Baroness Hale’s and so on. So viewed, differences—and similarities—between members of the senior judiciary are immediately apparent. Compare, for example, Baroness Hale’s deliberate articulation in K v Secretary of State for the Home Department; Fornah v Secretary of State for the Home Department of the “gender-related and gender specific persecution”¹⁹ involved in the practice of female genital cutting, with Lord Rodger’s strategic grammatical isolation of the “gender-specific” nature of the harm securely within double-quotes,²⁰ less it taint his subsequent remarks; or the similarities between Baroness Hale’s opinion and Lord Bingham’s in the same case (Rackley 2008, p. 48). Alternatively, consider again the strategic effects of Baroness Hale’s dissent to the majority of the House of Lords’ prioritisation of procedural fairness over substantive justice in R v J;²¹ her evocative narrative in Parkinson v St James and Seacroft University Hospital NHS Trust;²² or her self-description as “a reasonable but comparatively weak and fearful grandmother” in a criminal appeal relating to duress (Rackley 2006).²³

That said, while the criticisms of the case-by-case approach do not render it redundant, they do reveal its methodological limitations, not least the fact that any difference found is able to be sidelined or explained away as unrepresentative, selective or coincidental.²⁴ The argument goes something like this. While it is likely that the cases considered previously are, in fact, largely representative of Baroness Hale’s jurisprudence both in terms of content and subject matter (at least to the extent that any judge’s decision is to a greater or lesser extent reflective of his/her particular judicial approach) it is not possible to say with any certainty that this is the case. Similarly, while it is probable that (as with all law lords) her caseload will reflect her expertise and background²⁵—that she is more likely to sit on cases involving family law, for example, and for the same reasons, it is likely that she will give the leading opinion in these cases—we cannot, at present, say with any accuracy where this has happened. In short, until we are able to say that, for example, in 2007 Baroness Hale gave the leading judgment in just over 16% of the cases in which she sat and so on (Department for Constitutional Affairs 2005, p. 15), accusations of selectivity are likely to continue and, more importantly, to stick.

One response to this might be to adopt a numerical or statistical approach to analyses of Baroness Hale’s jurisprudence—similar to those adopted in the US and Canada.²⁶ To ask, for example, how many cases she sat on in any given year and in which areas in the hope that this will provide an explanation for the perceived bias in some academic commentary in favour of cases with a more obvious gender dimension. So, for example, the fact that in 2005 Baroness Hale sat on a total of 38 cases, four of which were family law related—representing a mere 10% of her caseload—could be countered by (or at least understood in the context of) the fact that this was 100% of the family law cases considered by the House of Lords that year (Department for Constitutional Affairs 2005, p. 15).

A more detailed assessment might focus on particular aspects of judgment. It might, for example, consider her dissenting opinions—perhaps the most obvious way for a judge to be ‘different’—adopting a similar approach to that of Belleau and Johnson (2005) in their consideration of the judgments of ‘The Great Dissenter’, Justice Claire L’Heureux-Dubé. It might ask, for example, how many times Baroness Hale has dissented since being appointed to the House of Lords? Is she more likely to dissent in some areas of the law rather than others? When does she dissent alone? And so on. Similar questions arise in relation to her concurrences, which are after all simply an expression of alternative reasoning that happens to lead to the same (or similar) conclusion (Belleau and Johnson 2004, p. 701). How often does she write a concurring opinion? Do they map onto particular legal issues? Is she more likely to agree with some of her colleagues than others?

Other projects might look beyond the House of Lords. What about Lady Justices Arden, Smith and Hallett in the Court of Appeal of England and Wales? To what extent does their difference, if any, mirror each other’s or Baroness Hale’s? Alternatively, how about a comparison with female justices on the Supreme Courts in other jurisdictions? How does Baroness Hale’s judicial approach compare to that of Justice Ruth Bader Ginsberg in the US? Does it make a difference that she sits alone in comparison to, say, Chief Justice Beverley McLachlin who sits alongside Justices Marie Deschamps, Rosalie Abella and Louise Charron on the Canadian Supreme Court? In fact, far from being trapped in ever-decreasing research circles, the possibilities are endless.

And yet, while these are interesting questions—likely to produce results capable of being presentable in tabular or even diagrammatic form to satisfy even the most ardent critic of cherry-picking—and would provide a clear overview of Baroness Hale’s jurisprudence, viewed in isolation from what the other law lords are doing they reveal relatively little about her difference. Moreover, both methods risk reifying the judicial text—perpetuating what Costas Douzinas and Ronnie Warrington have described as the “logonomocentrism” of the law (1991, p. 27)—over other aspects of judgment and judging where difference might be explored (Clark 2008). It is time then, perhaps, as Kenney suggests, to “shift the scholarly agenda … to ask different questions [and] reframe the discussion” (Kenney 2006, p. 55). However in so doing it is not my intention, in Kenney’s words, to “move beyond difference” (in the sense of rejecting it completely) but rather to consider how we might talk about and research difference differently and, ultimately, better; to think about how we frame questions about judicial difference and why we ask the questions we do.

Detailing Difference

Ever since John Griffith identified the judiciary in England and Wales as a largely homogenous group, possessing “a unifying attitude of mind, a political position, which is primarily concerned to protect and conserve certain values and institutions” (1997, p. 7), the class, age, education, sex, race and more recently sexuality of the judiciary have been subject to vigorous scrutiny (see, e.g., Thomas 2005; Sutton Trust 2005; Moran 2006; Darbyshire 2007, 2008). To date however while arguments for a more diverse judiciary focusing on the importance of equal opportunities or democratic legitimacy abound (see, e.g., Department for Constitutional Affairs 2004, para. 1.2), these are largely conducted in isolation from discussions about difference—that is, whether a more diverse bench might ‘make a difference’ in some way to the adjudicative process. Guardian editorials aside, conversations about what we mean by judicial difference and its potential role in strategies to increase judicial diversity (including and beyond gender) are largely unexplored.

In the UK, discussions relating to judicial difference often take place in the context of conversations about the woman judge and, in particular, Baroness Hale. Her uniqueness, like that of Justices Sandra Day O’Connor or Bertha Wilson before her, sets her apart and, in so doing, marks her out for particular and peculiar attention. As a result, her difference as a woman has been fetishised over other aspects of her identity—her academic background, her time as a law commissioner, her judicial training, as well as her personal characteristics—her feminist credentials (Hale 2007; Kenney 2008, p. 107; see also Hunter 2008), her experiences as a mother and grandmother. Sally Kenney makes a similar point in relation to attempts to identify the extent to which Justice Sandra Day O’Connor spoke ‘in a different voice’ (Sherry 1986; Behuniak-Long 1992) when she notes that with a sample of one:

it is impossible to demonstrate a connection between her gender and her style of reasoning. What is astonishing, however, is the determination of observers to find that distinct female essence of judging, rather than ask how her experiences, including gender, have shaped her perspectives, as gender and other life experiences have shaped each of the male judges. (Kenney 2006, p. 43)

This criticism is well made. Arguments suggesting that there is a necessary and direct correlation between Baroness Hale’s difference (understood as judging differently rather than simply atypicality) and her sex and/or gender (although there may well be one) or that she has a ‘different voice’ akin to the elusive voice of the idealised feminist lawyer and judge (although I agree that there may be similarities in tone particularly in relation to her recognition of the importance of narrative, context and the relational self) are not only difficult to sustain but strategically misguided. While Baroness Hale’s most obvious difference—her sex—gets our attention, it must not be allowed to sideline or explain away her difference; that she is a woman, while important, is not all-encompassing.

However, my purpose here is not to revisit the extent to which Baroness Hale—or indeed the woman judge more generally—is, or is not, ‘different’ (and, if so, where this difference comes from). Nor is it my intention to consider the possible impact this difference might have on the adjudicative process—to consider the difference difference might make. My point is this: to consider why we, and how we should continue to, ask questions about judicial difference? What is the role of difference in current debates about judicial diversity? Put another way, methodological difficulties as to how we might find difference aside, the point is not whether Baroness Hale (or any other judge for that matter) is or is not ‘different’ (whatever that might mean and however we might measure it) but what explorations of what is deemed different reveal about what she may, or may not, be different to. The question is this: what might explorations of Baroness Hale’s difference (or the woman judge’s difference more generally) reveal about our understandings of the judge and judging?

In shifting the focus from difference itself to what difference is different to, difference is recognised as a “product of comparison” rather than “intrinsic” to the individual (Minow 1989, p. 3). “[D]ifference is not merely ‘out there’ but is created through the ways we [or the judiciary] works” (Archer 2004, p. 470). So viewed, a focus on that which is different—both in the sense of being aesthetically atypical and doing judging differently—reveals the contingency of traditional accounts of legal reasoning and the possibility of alternative and diverse adjudicative voices, which are not necessarily (but may be) feminine and/or feminist in intonation. Put another way, difference is a means as well as an end; a method and an outcome. It provides us with an opportunity to test our assumptions about the judge and judging—to consider not only what is different to the judicial norm but the norm itself.

Questions about difference therefore—whichever methodology is adopted—are likely to reveal as much, if not more, about the other law lords than about Baroness Hale. In order to come to any conclusions about her jurisprudence—her caseload or pattern of dissents, for example—it needs to be considered alongside an understanding of the jurisprudence and pattern of judging of the other law lords: Does Baroness Hale dissent more or less often than, for example, Lord Neuberger? Is she more likely to agree with Lord Bingham or Lord Hoffmann? Is her case load numerically and substantively comparable to the other family judge, Lord Walker? And so on.

This is no bad thing. At present, beyond (indeed despite) ongoing claims of uniformity and homogeneity, the law lords continue to be a relatively mysterious and inscrutable bunch. The study of the judicial process in England and Wales as a subject of research remains largely underdeveloped (Baum 1977; but see Darbyshire 2008; Dickson 1999; Paterson 1982; Robertson 1982; Stevens 1979; Blom-Cooper and Drewry 1972). In particular, our tendency in general to follow developments in the law according to legal topic or theme rather than by person means that while we may well have a sense or impression of an individual law lord it is likely that this corresponds closely to, and stems from, assessments of his opinions in our own particular areas of expertise and interest, and that, as a result, we know little of their jurisprudence outside of these relatively narrow confines. While a tort lawyer will know something about Lord Hoffmann’s opinion in White v Chief Constable of South Yorkshire Police,²⁷ they may know less about his opinion in the criminal case R v Smith.²⁸ As a result, understandings of the jurisprudence of a specific law lord are almost inevitably partial and incomplete. “[I]t is something else altogether”, suggest Marie-Claire Belleau and Rebecca Johnson, “to follow the thinking of a judge exclusively through [for example, their] dissents” (2004, p. 701); or to look for judicial difference (however defined) in the use of language and narrative in all the opinions contained in a particular case (Belleau and Johnson 2007).

So viewed difference, understood as a lens or portal through which to explore the judge and judging, provides concrete insights into the reality of the judiciary. It presents us with an opportunity to gain a better understanding of who the judges are and how they judge. It requires us “to look away from that which stands out as different in order to be able to evaluate the mainstream, the common and the ‘normal’” (Cooper 2004, pp. 193–194). It opens up avenues for more complete understanding of the judge and adjudication. In so doing, we may find that Baroness Hale isn’t all that different after all. And maybe that’s the point. Maybe she doesn’t need to be all that different—just different enough to get our attention. In short, the transformative potential of judicial difference lies in the process of its detailing rather than in the detail itself. To the extent that our focus on difference leads us to take a fresh look at the judiciary, it requires us to look beyond our impressionistic understandings of what judges do or how they think and to embrace the possibility of a judiciary where being different isn’t even “just a little bit” different.

Concluding Remarks

This paper has sought to carve out a space in which to ask questions about difference without the need for answers; to consider whether we should continue to ask questions about judicial difference and how we might frame them. It has become apparent that, as with many things, the answer to these questions depends not only on how they are framed, but the context in which they are asked; that difference is as much a process as an end. Thus, rather than taking us back to where we’ve already been, properly framed and located, such questions about difference provide us with an opportunity to begin to see through difference; to recognise it as a point of comparison by which we might begin to make new enquiries of the judge and judging. Put another way, it has been argued that the importance of asking questions about difference lies not in what way, or why, a particular judge is, or is not, different but rather in what that which is deemed as different (however so defined) reveals about what it is different to.