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Lookup NU author(s): Professor TT Thiruvallore Thattai
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).
Most work on the UK's judiciary reflects the assumption that the institutional issues raised by attitudinal studies of the US Supreme Court are irrelevant to the UK because the UK's judiciary is not political. This article challenges those assumptions. We present an empirical and theoretical analysis of the 'doctrinal model' of judicial decision-making in the upper judiciary of the UK, that is to say, of the position that judges decide cases on the basis of doctrinal positions rather than political views, and argue that it has far more in common with the attitudinal model than is conventionally assumed. We elaborate upon this through an empirical analysis of decisions of the Law Lords on challenges to state bodies over a twenty-five year period, which estimates judges' ideological positions on a scale derived from doctrine. We find that (a) there are meaningful and measurable differences in judicial positions in key doctrinal controversies (b) these differences have an impact on the outcome of a significant minority of cases. Our results support the view that doctrinal positions are more salient than party-political ideology in the UK context, but also demonstrate that even faithful adherence to a doctrinal model does not affect the validity of the insights of the attitudinal model in relation to the role and impact of judges' personal views. We show that on a proper understanding, doctrinal adjudication raises the same questions of institutional structure and design emphasised by the attitudinal model, and that these questions assume particular significance given changes to the British judiciary's institutional role.
Author(s): Arvind TT, Stirton L
Publication type: Article
Publication status: Published
Journal: Public Law
Year: 2016
Volume: 2016
Pages: 418-436
Print publication date: 01/07/2016
Acceptance date: 04/01/2016
Date deposited: 07/01/2016
ISSN (print): 0033-3565
Publisher: Sweet & Maxwell Ltd
