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Courting Faith: an Empirical Study of Lawyers' Perceptions of The Courting Faith: An empirical study of lawyers’ perceptions of the relationship between religion and judicial decision-making Amanda Jane Springall-Rogers Submitted for the degree of Doctor of Philosophy University of East Anglia School of Law December 2016 © This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and that use of any information derived there from must be in accordance with current UK Copyright Law. In addition, any quotation or extract must include full attribution. Abstract The traditional view of judicial behaviour posits that only the evidence and the law form the basis of a judicial decision. However, research shows that judging is influenced by a variety of legal and non-legal factors, particularly in cases involving judicial discretion. Whilst there is a wealth of empirical research that explores the interplay between religion and judging in other jurisdictions, particularly in the US where judges’ faith has been found to affect judicial decisions in certain legal areas, much less scholarly attention has been paid to this relationship in the context of the British courts. This socio-legal study uses semi-structured interviews with barristers and an online questionnaire completed by solicitors, both predominantly practising in employment or family law, to explore whether the religious beliefs of judges are perceived by lawyers to influence individual judicial decision-making in the English courts and, if so, how. The study finds that judges’ faith is perceived to potentially influence the decisional process in cases which, directly or indirectly, involve religious issues. However, the effect of such influence is considered to be marginal, being generally confined to that which is unconsciously manifested and not determinative of case outcomes. Constraints on judging are thought to be central in ensuring that judicial decision- making remains within the limits of the law. Whilst lawyers are largely confident that the influence of religious beliefs is not a cause of concern in judicial decision- making in the English courts, the evolving religious and legal landscapes in Britain means that there is no room for complacency. Judicial training, both in relation to understanding religiously sensitive issues and the role played by unconscious biases, is vital to ensure that judgments are reached on the basis of sound legal reasoning and not on the basis of judges’ personal proclivities. 2 Table of Contents Abstract ......................................................................................................................................... 2 List of figures ............................................................................................................................... 6 List of tables ................................................................................................................................. 7 Table of Cases .............................................................................................................................. 8 Table of Statutes and Legislation ............................................................................................ 12 Acknowledgements ................................................................................................................... 13 CHAPTER 1 INTRODUCTION ......................................................................................... 15 1.1 Introducing the research issue ...................................................................................... 15 1.2 Background: Changing landscapes .............................................................................. 18 1.3 Explaining the focus on religion .................................................................................. 25 1.4 Lawyers’ perceptions ...................................................................................................... 29 1.5 Researcher perspective .................................................................................................. 36 1.6 Summary and structure of thesis .................................................................................. 37 CHAPTER 2 RELIGION AND JUDICIAL DECISION-MAKING: THEORETICAL PERSPECTIVES ..................................................................................... 38 2.1 Introduction .................................................................................................................... 38 2.2 Defining religion ............................................................................................................. 38 2.2.1 Religion as a research concept .............................................................................. 39 2.2.2 ‘Religion’ in the UK courts ................................................................................... 42 2.3 Theories and models of adjudication .......................................................................... 63 2.3.1 Conceptions of the judicial role in the English Courts ..................................... 63 2.3.2 Constraints on judging ........................................................................................... 65 2.3.3 Theories of adjudication ........................................................................................ 67 2.3.4 Models of judicial behaviour ................................................................................. 69 2.4 Judging through a judicial lens ..................................................................................... 73 2.5 Impartiality in an adjudicative context ........................................................................ 77 2.6 Conclusion ....................................................................................................................... 89 CHAPTER 3 UNDERSTANDING JUDICIAL DECISION-MAKING: RESEARCH LANDSCAPE ........................................................................................................................... 91 3.1 Current research landscape in the UK ........................................................................ 91 3.2 Explaining the paucity of empirical research ........................................................... 103 3.3 Empirical findings from other jurisdictions ............................................................. 108 3 3.3.1 Evidence from the US ......................................................................................... 108 3.3.2 Evidence from Commonwealth countries ........................................................ 119 3.4 Using US studies to conduct similar research in the UK ....................................... 121 3.5 Conclusion ..................................................................................................................... 126 CHAPTER 4 RESEARCH METHODOLOGY AND METHODS ........................... 128 4.1 Using empirical legal research .................................................................................... 128 4.2 Research design ............................................................................................................ 129 4.3 Research paradigm: pragmatic worldview ................................................................ 129 4.4 Research strategy: exploratory sequential design ..................................................... 130 4.5 The missing dimension: perspectives from the bench ............................................ 133 4.6 Research Method Study I: Qualitative Interviews with Barristers ........................ 134 4.6.1 Barristers: a purposive sample ............................................................................ 134 4.6.2 Sample selection .................................................................................................... 136 4.6.3 Sample characteristics .......................................................................................... 138 4.6.4 Data collection: semi-structured interviews ...................................................... 139 4.6.5 Data Preparation ................................................................................................... 140 4.6.6 Data management and analysis ........................................................................... 141 4.7 Research Method Study II: Solicitor Perceptions Questionnaire .......................... 144 4.7.1 Identifying the sample: Solicitors ....................................................................... 144 4.7.2 Sample criteria ....................................................................................................... 145 4.7.3 Data Collection: Solicitor Perceptions Questionnaire .................................... 145 4.7.4 Sample selection .................................................................................................... 149 4.7.5 Sample characteristics .......................................................................................... 150 4.7.6 Data preparation ................................................................................................... 154 4.7.7 Data analysis .......................................................................................................... 155 4.8 Limitations of research methods ................................................................................ 156 4.9 Ethical considerations .................................................................................................
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