Representations of the (woman) judge: Hercules, the little mermaid, and the vain and naked Emperor

Authors

  • Erika Rackley

    1. Kent Law School, University of Kent
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      I would like to thank the many with whom I have spoken about mermaids, fairy tales and adjudication. In particular, I wish to acknowledge the encouragement, pertinent insights, and intellectual generosity and support of Lady Justice Hale, the anonymous referees and Joanne Conaghan.


Abstract

This paper reconsiders images of the judge and, in particular, the position of the woman judge using fairy tale and myth. It begins by exploring the actuality of women's exclusion within the judiciary, traditional explanations for this and the impact of recent changes. It goes on to consider the image of the Herculean judge, arguing that whilst we may view him as an ideological construct, or even as a fairy tale, we routinely deny this to ourselves and to others. This both ensures the normative survival of Hercules and simultaneously constrains counter-images of judges, including that of the woman judge, who becomes almost a contradiction in terms, faced with the need to shed her difference and fit the fairy tale. Like the little mermaid, the woman judge must trade her voice for partial acceptance in the prince's world.

This image of silencing which Andersen's tale so vividly captures highlights a paradox in current discourses of adjudication. On the one hand, women judges are viewed as desirable in order to broaden the range of perspectives on the bench, thus making the judiciary more representative; on the other hand, judges are supposed to be without perspective, thus suggesting there is little need for a representative judiciary. Feminists and other commentators negotiate their way uncomfortably through this territory, acknowledging a gender dimension to adjudication, but failing fully to confront its implications. This paper seeks to ‘undress’ the judge, to flush out images of adjudication which deter or prevent women from joining the judiciary and constrain their potential within it. It highlights both the role of the imagination in existing conceptions of adjudication and the increasing necessity for a re-imagined Hercules – an alternative understanding of the judge which women and other groups currently underrepresented on the bench can comfortably and constructively occupy.

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