Category Archives: Writing

Lurking under the general heading of ‘biography’ are a whole range of particular genres of biography that have their aficionados but are rarely found on the best-seller lists.  Judicial biography is one such genre.  Because my research interest is a nineteenth century judge, I’ve been delving into quite a few judicial biographies and becoming even more certain that my work could not usefully be described as ‘judicial biography’ at all.

The celebratory judicial biographies of the early Victorian era (e.g. Campbell’s Lives of the Lord Chancellors) were described by Phillip Girard (2003)  as “partisan, gossipy, cavalier with facts and delightfully titillating.”  Certainly John Raithby, who wrote The Study and Practice of the Law considered, in their various relations to society in a series of letters (2nd ed, 1816) felt that we would all be better men if we read judicial biography

  ‘When I look back upon the history of my own country, or search the records of those which are no more, I rejoice that the most elegant ornaments of the one, and the noblest monuments of the other, are to be found in the fame of those men who have studied the laws, and directed the jurisprudence of their respective nations … . Look up to these exalted characters, and resolve to imitate, if you cannot equal them. … [N]ot only their works but their actions ought to be the objects of investigation. Endeavour to mark their feelings while you peruse the accounts of their lives; see how the ambition of this man has led him too far, or the immoderate love of repose too greatly restrained him … how the intemperance of lust has destroyed another, or his want of social affection rendered his powers and acquisitions useless.” (p. 17, 28)

More recent judicial biographies are lighter on the moral lessons, but sometimes they do still tend to be rather hagiographical and worthy.  They are often written by judges and lawyers (and to a certain extent they need to be if the courtroom aspect of their life is to be examined critically)  but they are often permeated by a sense of deference that emerges, perhaps, from a life spent within a hierarchical system. In this regard, they remind me of military biographies, where everyone is named, lest offence be caused by omitting someone important; and there’s a masculine clubbability that underpins them as well.

James Thomson in 2007 wrote that:

Judicial biographies must provide explanations and analysis of, at least, the major cases; explore the judge’s interpretive strategies and decision-making processes; expose intra-mural relationships— collegiality, collaboration and confrontation—with other Justices; trace the origins and development of the judge’s character, beliefs, views and motivations; and delineate the influences—public and private—on the judge’s opinions and decisions.

Phillip Girard imposed another requirement:

“which is that the time spent by the subject in judicial office, as opposed to doing other things, should be of more than passing interest to the biographer.”

So, hedged with all these exhortations and injunctions, how does Pamela Burton’s From Moree to Mabo: The Mary Gaudron Story stack up?

For a start, that masculine clubbability is challenged from the outset. Mary Gaudron was Australia’s first female High Court judge, and her biographer is a woman as well.  There is still just a hint of that professional in-groupness that is so impenetrable to outsiders, but because it is interwoven with the personal and political, it does not skew the whole worldview of the book.

The author Pamela Burton is a barrister herself, and as well as founding her own law firm, was a Senior Member of the Commonwealth Administrative Appeals Tribunal and was legal counsel for the Australian Medical Association.  Her experience serves her (and thus, us) well.  As Posner, Chief Judge U.S. Court of Appeal (1995)  wrote, it is difficult for a non-lawyer to write a judicial biography.

This is not only because judges deal with technical legal issues but also because the role of the judge is difficult for nonlawyers to understand. Nonlawyers tend either to be credulous about judges’ self-serving rhetoric of disinterest or to assume that judges are merely politicians (“statesmen” if the nonlawyer shares the judge’s politics) in disguise, whereas the truth usually lies somewhere in the middle….Judges are great bluffers, and it is particularly difficult for nonlawyers to penetrate the bluff unless they are highly cynical. (p. 513)

A quick flip through the index to the book highlights the heavy use of court records and case reports.  There is no doubt at all that this is a life spent in the law.  She presents the cases well, with enough background for someone unfamiliar with them to make sense of them.  It’s a difficult line for an author to tread: enough evidence from the judge’s behaviour in court to support the observations made in the biography, but not so many that the reader- particularly a non-lawyer reader- feels engulfed.

To my way of thinking, a biography is not just a chronicle of events.  While the elapse of time does impose a certain chronological shape to the subject’s life, it is the author’s decision where to place the emphasis and how much space in terms of pages to devote to various aspects of a life.  The author is an active agent in the telling by crafting an argument about what this life means.  Burton grapples with the issue of politics and the law by exploring the nature of ‘political connections’ as a means of progressing a career and yet resisting being captured by one side of politics.  She takes the issue of judicial logic and intellect very seriously, and in this regard the book could be just as easily conceptualized as an intellectual biography as a judicial one.  She balances the personal, the political and the professional.

Gaudron did not co-operate in the writing of this biography: in fact she said that she had a horror of biographies.  The bibliography of this book shows where the author mined to gather her material.  There are three boxes of her papers at the National Library, but these only go up to 1979 and the Conciliation and Arbitration phase of her career.  There are three oral histories, but one of them is closed to research and public use until 5 January 2043.   Gaudron herself has written the foreword to others’ books and some articles, but the bulk of the primary material is drawn from Gaudron’s speeches and court transcripts. The author undertook extensive interviews with Gaudron’s colleagues, although not all wished to be named.  As the author herself admits “A measure of boldness is required to write a biography of a living person who is not enthusiastic about it being written.” (p. xviii).  I must admit that I would quail at the thought.

References

Girard, Phillip  ‘Judging Lives: Judicial Biography from Hale to Holmes.’ Australian Journal of Legal History  Vol 7, No. 1, 2003 p. 87-106

Posner, Richard ‘Judicial Biography’ New York University Law Review, Vol 70, No. 3 1995, p. 502

Thomson, James ‘Biographies and Biographical Writing’ in  Michael Coper, Tony Blackshield and George Williams (eds.), The Oxford Companion to the High Court of Australia, 2007 p.