Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice

Abstract

This article presents an interpretive politics of the judiciary, arguing for the value of interpretive political analysis in understanding developments in case law and judicial activity. It sketches out a senior judicial tradition, which is argued to guide but not predetermine the actions of the British senior judiciary. A case study, the senior judiciary's response to the Imprisonment for Public Protection (IPP) sentence, is presented, drawing on case law, extra‐judicial speeches, and interviews with five serving or retired senior judges. It is argued that this demonstrates the senior judiciary to be politically attuned actors, often highly sensitive to the broader context, while equally determined to act with fidelity to the law and the responsibilities inherent in an independent, impartial judiciary. The IPP case law suggests that the senior judicial tradition, and its inherent tensions, limits the extent to which the senior judiciary feel equipped to oppose the ‘pre‐emptive turn’ in criminal justice.