Women judges who judge women offenders: a Chinese case study on gender and judging

ABSTRACT

Based on an empirical study, this article examines Chinese female judges’ life experiences and worldviews by asking: are women judges feminist or pro-feminism? Given the very nature of feminism, if a large number of women judges are feminist or pro-feminism, they are likely to bring attention to women’s issues in the judiciary and the judicial process. If so, women’s equal participation in courts would make a vital difference in law and judicial production. The article first provides the context of the research on which this article is based. Next, it briefly outlines several key methodological issues. Then, it presents findings on female judges’ perceptions of women’s gender roles, their views about female offending and their awareness of feminism. Finally, it highlights the evidence presented and offers implications of the research.     

Prison sentences: last resort or the default sanction?

ABSTRACT

This paper discusses the sentencing purposes for penal penalties, judges’ perceptions of sentencing purposes and prison sentences, and the effects of penal sanctions. We examine judges’ positions towards different penalties, with a focus on imprisonment, since their views on the different penalties are related to their sentencing decision-making. Understanding these views is then critical for several practical and political purposes, including bridging the gap between academic discourse and legal practice. We accessed judges’ views on penal sanctions through a questionnaire and an interview. Our sample is compounded by the judges of the criminal courts from the three major cities in Portugal. Despite the most recent criminological empirical knowledge, judges valued imprisonment as the most adequate sentence, both for different crimes and for different judicial purposes. This result is not consistent with viewing imprisonment as a ‘last resort’ solution. Indeed, we did not find this ‘last resort’ position in our data, and it is not apparent in the judicial statistics on imprisonment rates. Our data highlight the importance of increasing judges’ training on criminological and sociological issues as well as the importance of changing the influence of their personal beliefs regarding penal sanctions into research-based positions.     

Judges as Readers,Authors and Dialecticians: Legal Interpretation in the EC<Emphasis Type="Italic">t</Emphasis>HR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.     

Can feminist judges make a difference?

Many of the expectations and aspirations about the ‘difference’ that women judges would make have proved unrealistic, given the inevitable diversity and often conservatism of women appointed as judges. On the other hand, we might reasonably expect feminist judges to ‘make a difference’. This essay focuses on feminist judges, and seeks to identify what it is that we might reasonably expect of them. This in turn requires consideration of who counts as a feminist judge, what might be included in a feminist approach to judging, and what institutional norms inherent within the judicial role might constrain the adoption of a feminist approach. The essay concludes that feminist judges both can and ought to make a difference across a wide range of judicial activities.     

Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation

While there is abundant research on common law jury systems, we know less about lay participation in civil law crime trials, often called ‘mixed courts’ or alternately ‘mixed tribunals'. Here, a professional judge and a number of lay judges deliberate together on the issues of guilt and sentencing. This joint deliberation has naturally led both public opinion and research to focus on power relations such as lay judges’ dependence on the professional judges. Based on an ethnographic study of deliberation processes, the present article offers a different perspective on lay judges’ contribution and argues that their decision making rests on a hybrid construction of knowledge in the continuous interaction between the professional judge and lay participants during deliberation. The analysis of this decision‐making process contributes to our understanding of how ordinary people selected for this civic duty create knowledge about justice.     

Risks of Criminal Victimization in Contemporary Urban China: An Application of Lifestyle/Routine Activities Theory

The philosophical underpinnings of youth courts rest on the notion that youths are less culpable and more reformable than adults. Some scholars argue that, ideally, when sentencing youth crime, judges should engage youthful offenders in moral communication to elicit change. But do they? What more generally do judges say to the youths? This paper analyzes the frequency and content of judicial censure and moral communication in the sentencing of youth sex offenders. Drawing on the sentencing remarks for 55 sexual violence cases, we examine the ways in which judges interact with youths and censure the offenses, and what, if any, normative guidance they give concerning gender, sexuality, and violence. We found that in most but not all cases, the judges censured the offending as both a moral and legal wrong. However, they spent more time discussing a youth’s future than past behavior, as they sought to elicit change. The judges did not degrade or exclude the offenders; rather, they addressed them in a spirit of reintegration, as worthy individuals with future potential. Although the judges set norms of appropriate sexual behavior to the youths when the offense victims were children, they did not always do so when victims were female peers. In this Youth Court, “real rape” was sexual offending by a youth against a child under 12 years of age. By contrast, in about one‐fifth of cases, all of which occurred against a female peer, the offending was censured only as a legal wrong (a “pseudo censure”) and less likely subject to judicial norm setting.     

High‐End Demand: The Legal Profession as a Source of Judicial Selection Reform in Urban China

Most studies of comparative judicial politics suggest that judicial autonomy emerges from democratic competition, but despite its authoritarian political system, China has introduced reforms that increase merit‐based competition, transparency, and modest professional autonomy in local courts. Variations in judicial selection procedures across urban China reflect differences in local markets for professional legal services: when mid‐ranking judges can easily find lucrative local employment as lawyers, court leaders strategically reform appointment and promotion mechanisms to retain these young, but experienced, judges. These findings are based on nearly fifteen months of in‐country fieldwork, conducted between 2012 and 2014, including forty‐nine interviews with judges across three different cities: Shanghai, Shenzhen, and Chengdu. Employing the subnational comparative method, this article not only builds theory regarding the legal profession's role in authoritarian states, but also offers new empirical detail regarding the selection, performance evaluation, and behavior of judges in urban China.     

Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts

Lower national courts are increasingly asked to perform a transnational role, being directly involved in major geopolitical issues such as conflicts, migration, and transnational terrorism. Based on an ethnography of French criminal courts, this article aims to examine this emerging role of national lower courts as transnationalized players. Through an examination of terrorism prosecutions in France and the positions of the different judicial actors, it is argued that lower criminal courts, acting within a transnational context, can offer more robust resistance to states’ policies than supreme courts. This is because of the routine and the banality of their function and the direct interaction with the accused persons coupled with the judges’ own professional ethos and notion of judicial independence. Unlike supreme courts, whose role is more visible, and thus under the constant scrutiny of the political branches of the state, lower courts can operate in a more distant, independent space.     

论法院处理环境纠纷案件中的司法能动

司法能动是法院在案件审理中,不因循先例和遵从成文法的字面含义进行司法解释的一种司法理念以及基于此理念的行动。我国法院在发挥司法能动性,处理环境纠纷案件方面作出了大量努力,为经济社会发展提供了司法保障。但法院在发挥司法能动性处理环境纠纷案件中仍然存在较大的问题。解决这些问题,必须把握法院在环境纠纷案件处理中司法能动的向度,落实司法独立,引导法官正确行使自由裁量权,努力培养环境司法专业人才,发挥法官适用法律的能动性。     

Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf

This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing on two questions. First, how did pro-Musharraf regime judges expand judicial power, leading to a confrontation with the regime? Second, how did the bar and the bench mobilize in the struggle for judicial power? The author shows how, instead of blindly supporting economic liberalization in a period of economic growth, the Supreme Court expanded power by scrutinizing questionable urban development, privatization, and deregulation measures in a virtuous cycle of public interest litigation. The author also describes how a politics of reciprocity explains the social mobilization of lawyers as the bench protected the bar from regime penetration, and the bar protected the bench from regime backlash. The Pakistani case questions some of our assumptions about economic liberalization and courts in authoritarian regimes, and the study invites scholars to explore the role of courts in developing judicial support structures and the role of lawyers in social movements.     

Considering the consequences of increased reliance on judicial assistants: a study on Dutch courts

Virtually all judicial systems employ judicial staff members to assist judges in their work. However, except for US Supreme Court law clerks the role of these judicial assistants in judicial decision-making is minimally understood. This observation also holds true for the Netherlands, where an increased focus on managerial issues, such as efficiency and effectiveness, seems to have resulted in a growing number of judicial duties being assigned to judicial assistants. This article provides an initial reflection on such reliance on assistants. The context in which this development occurred is clarified, and the manifestation of the role of judicial assistants within the judicial process is described. This article also discusses two factors that require consideration when reliance on assistants increases: (1) the mechanisms for safeguarding the profession of the judge and the judicial assistant; and (2) the position of the judicial assistant in the judicial decision-making process. The consideration demonstrates the advantages of employing judicial assistants and also sheds light on serious risks relating to an increased role of judicial assistants in judicial decision-making.     

从制度上保证审判独立——以司法独立的国际标准为参照

司法独立的国际标准要求法院和法官在行使审判权的时候不受干预,有关各方也不得进行干预,并且还应当为法院和法官独立审判提供积极保障。我国的审判独立原则包含了法院集体独立和法官个体独立的内涵,但无论是在立法上还是在实践中,都与国际标准存在着一定差距。只有以国际标准为指导,对我国不符合审判独立要求的制度和做法进行改革,才能够达到从制度上保证审判独立的目的。     

Enhancing judicial skills in domestic violence cases: the development,implementation, and preliminary evaluation of a model US programme

ABSTRACT

The overwhelming number and complexity of domestic violence cases in criminal and family courts has resulted in the development of education programmes to assist judges. There is limited research on judicial education in this area. This paper reviews one such initiative entitled ‘Enhancing Judicial Skills in Domestic Violence Cases’ (EJS) that has been developed and implemented over the last 20 years by the National Judicial Institute on Domestic Violence, a partnership of the US Department of Justice Office on Violence Against Women, National Council of Juvenile and Family Court Judges and Futures Without Violence. We present findings of a preliminary evaluation of the programme based on the self-reports of 480 judges who had taken the four-day workshop between 2006 and 2010. Overall, judges reported the programme to be engaging and effective. At a six-month follow‐up, most of the judges identified specific benefits and behavior changes in the areas of access to justice, judicial leadership, victim safety, and abuser accountability as a result of participating in the programme. Critical issues in judicial education are highlighted based on the authors’ experiences in the development and implementation of this programme.     

Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

Government transparency is a key component of democratic accountability. The U.S. Congress and the president have created multiple legislative avenues to facilitate executive branch transparency with the public. However, when the executive branch withholds requested information from the public, the federal judiciary has the power to determine whether agencies must release documents and information to requestors. When enforcing standards of executive branch transparency, judges must balance concerns of executive autonomy and judicial intrusion into administrative decisionmaking. While much judicial scholarship focuses on the decisionmaking on high courts, in the U.S. context, federal district courts play a key role in adjudicating transparency disputes. In this article, I examine case outcomes in disputes involving agency claims of deliberative process privilege over internal agency documents litigated between 1994 and 2004. I find that U.S. federal district courts largely defer to administrative agencies in transparency disputes. However, factors such as agency structure and the congruence between judicial and administrative agency policy preferences influence whether federal judges require executive branch officials to release requested information.     

'An Unfortunate Coincidence': Jews and Jewishness in Twentieth-century English Judicial Discourse

This paper explores the neglected area of representations of Jews and Jewishness in English legal cases. In considering judicial knowledge of ‘the Jew’, I ask three primary questions. First, how do English judges understand and represent ‘the Jew’ and in relation to what material factors do these understandings and representations change? Second, how do English judges construct racial knowledge, what rhetorical technologies are fashioned and deployed? Third, are the effects of contemporary judicial racializations of Jewishness different in substance from earlier ones? The purpose of this paper is to study the encounter between English judges and ‘the Jew’ in the twentieth century, eschewing a reading that centres ‘antisemitism’ or ‘discrimination’ in favour of one that focuses on the complex and contradictory narratives in these judgments and the kinds of work these narratives do.     

Judges,Conflict, and the Past

Drawing upon interviews with senior judicial figures in Northern Ireland, South Africa and elsewhere, this article considers the role of the judiciary in a political conflict. Using the socio‐legal literature on judicial performance and audience as well as transitional justice scholarship, the article argues that judges in Northern Ireland ‘performed’ to a number of ‘imagined’ audiences including Parliament, ‘the public', and their judicial peers – all of which shaped their view of the judicial role. In light of ongoing efforts to deal with the past in the jurisdiction, and the experiences of other transitional societies, the article argues that the judiciary can and should engage in a mature, reflexive and, where appropriate, self‐critical examination of the good and bad of their own institutional history during the conflict. It also argues that such a review of judicial performance requires an external audience in order to encourage the judiciary to see truth beyond the limits of legalism.     

反思民事诉讼中的“以鉴代审”

司法鉴定作为审判查明事实的重要手段，在司法实践中扮演着重要的角色。鉴定意见在诉讼中与其他证据一样不具有预先的证明效力。然而，因其倚重于鉴定人的“专家”身份及其携带着超越常人智能的科技因素或者专门知识．在司法实践中却发生着异乎寻常的作用。缘于对司法鉴定意见的过于“迷信”，司法实践中出现了诸多以鉴定意见代替审判过程的现象，从而在很大程度上扭曲了司法鉴定原有的功能和定位，异化了司法审判自身的特质。通过对司法鉴定运行过程中存在“以鉴代审”现象的反恩为出发点，并在分析司法鉴定实践中存在主要问题的基础上。探讨司法查明事实的边际与方法问题，从而尝试性地提出应对“以鉴代审”的改革路径。     

Judicial Activism in the Name of the Nation: Reneging on the Integration of Immigrants in Greece

Why do courts sometimes decide to liberalize migrants’ rights, while at others restricting such rights, even contrary to the policies of elected governments? This article addresses this question in the context of Greece. It explores the causes and consequences of judicial decision making in a major decision of the Council of State that suspended the most important government reform of 2010, promoting the integration of third‐country nationals. Drawing on judicial politics scholarship, it argues that the ideological and political preferences of key judges were an important influence on the first Council of State decision considered here. However, in the final decision, intra‐court dynamics and the judges’ consideration of external political constraints influenced the court's reasoning, leading to a more moderate outcome, with important consequences for the relaunching of policy reform.     

Domestic judicial defiance and the authority of international legal regimes

Tensions and occasional overt defiance of international courts suggest that compliance with international regimes is not a self-evident choice for domestic judges. I develop a formal theory of domestic judicial defiance in which domestic and supranational judges vie for jurisprudential authority in a non-hierarchical setting. The model emphasises the role of domestic non-compliance costs and power asymmetries in determining the conduct of domestic and international judges. I argue that the EU represents a special case of a particularly effective international regime. Weak domestic courts have little to gain from an escalated conflict with the European court of Justice. But even domestic judicial superpowers like the German Federal Constitutional Court have strong incentives to seek mutual accommodation with European judges. The analysis also yields new insights into concepts, such as “judicial dialogue” and “constitutional pluralism” that have featured prominently in the legal literature, and suggests new hypotheses for empirical research.     

Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court

How courts and judges in authoritarian regimes decide cases behind closed doors has rarely been studied, but it is critically important in comparative judicial studies. Primarily drawing on the minutes of the adjudication committee in a lower court in China, this article explores its operational patterns and decision‐making process. The data suggest that among the criminal cases reviewed by the committee, very few were difficult or significant, but a relatively high percentage of the suggested opinions of the adjudicating judges was modified. In contrast, many civil cases reviewed were difficult to resolve but the committee offered little assistance. Overall the operation and decision‐making of the committee were subsumed by the administrative ranking system inside the court and the authority of the court president was enormous. The analysis also demonstrates the limited role of the committee in both promoting legal consistency and resisting external influences. Instead of achieving its declared goals, the committee has degenerated into a device for both individual judges and committee members to shelter responsibility. The findings compel researchers to reevaluate the role of the adjudication committee in Chinese courts, and the relationship between judges and authoritarian regimes.