Book Review: ‘The Politics of the Judiciary’
Bias on the Bench
‘The Politics of the Judiciary’, by J. A. G. Griffith (Fontana 1977) £1.25
“In the traditional view” John Griffith writes, “the function of the judiciary is to decide disputes in accordance with the law and with impartiality. The law is thought of as an established body of principles which describes rights and duties . . . ” Essentially, this view rests on an assumption of judicial “neutrality”. Griffith’s book is an attempt to explode this erroneous view.
It is not difficult to show that the judiciary are a collection of reactionary, narrow minded servants of the existing elite. Indeed some have wondered why Griffith has bothered to write a book just to demonstrate this obvious fact. However, it is worth demonstrating and although proof is not hard to find the book is useful in that it pulls together in a readable lucid style several areas of judicial action which supports Griffith’s contention of the bias of the judiciary.
One of the most illuminating and instructive examples is a well known speech by one of England’s best known judges, Lord Denning. In a case dealing with the London Borough of Southwark’s claim for possession of slum houses against some squatters, Denning made the following remarkable statement:
“If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut . . . So the courts, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good” (our emphasis).
In showing the judiciary’s bias in favour of property in general and against such groups as trade unions, students and squatters, Griffith has demonstrated the purpose of his book, which he claimed was to look at the ways in which judges have, in recent years, dealt with political cases which have come before them. What is unfortunate (although inevitable) about the book is that Griffith gets no further than pointing out the lack of judicial neutrality. He writes: “to expect a judge to advocate radical change, albeit legally, is as absurd as it would be to expect an anarchist to speak up in favour of an authoritarian society”.
This of course is the wrong question. It is not a matter of whether the judges are concerned to preserve and protect the existing order of society, but what the working class are prepared to do about capitalism. Griffith shows little understanding that what is at stake is not the obvious bias of the judiciary, but the bias of the working class in favour of the society that the judiciary defend.