The code of conduct for judges attempts to regulate the behaviour of judges. However, it fails to provide any guidance as to the regulation of judges’ emotional behaviour. Judges, like all 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 these emotions. Sometimes, it leads to odd episodes in our courts. A section of lawyers may also be attributed the responsibility of such incidents but it is the behaviour of a judge that largely determines decorum of the court.
The traditional model of judging expects judges to set emotions aside while conducting court proceedings. This model insists that a good judge should be able to successfully hide or restrain their feelings. 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 20th 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. Chief Justice 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, needs to appreciate sane voices and dismantle the traditional model of the dispassionate judge. Our legal profession, in fact, needs to produce emotionally disciplined lawyers, who will go on to become judges.
According to 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.
The traditional model of judging expects judges to set emotions aside while conducting court proceedings. This model insists that a good judge should be able to successfully hide or restrain their feelings
According to James J. 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 could handle situations in a cool and composed manner.
The traditional model of judicial behaviour needs to be re-examined in light of the latest scientific studies on emotional regulation. The traditional assumptions that judges can manage emotions easily or they should hide emotions successfully are misplaced. Advanced psychological studies demonstrate that emotional regulation is a complex phenomenon. Even common sense informs that hiding one’s emotions is nearly 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 suppressed emotions on one’s judgment. It also affects overall health and happiness of a human being. A more engaged approach would, thus, prepare judges to identify their emotions and learn about their impact on their judgment. This approach would equip judges to employ emotions skilfully to conduct 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 sometimes encounter rude behaviour. They are exposed to false statements and concocted stories. 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 remain silent. 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 emotional situations more effectively. Judicial “emotion regulation” would, in fact, improve behaviour as well as the quality of judging. It would strengthen the working relationship between the bench and bar that is essential for proper functioning of any judicial system.
The writer is a lawyer