To Speak as a Judge: Difference, Voice, and Power (review)

In To Speak as a Judge, Sandra Berns explores the intersection between feminist theory and claims to judicial authority. Judging, as Robert Cover trenchantly observed, "takes place in a field of pain and death" (Cover 1986, 1601). Judges wield extraordinary power, and as a result, must confront difficult challenges in justifying what they do. Law is the exercise of force; even contracts are enforced. Without authority, force is illegitimate. The problem of justifying judicial authority is an old and persistent one in legal philosophy. Berns deepens it with insightful questions from feminist theory. How can "the feminine" claim authority? How can the judge act authoritatively, yet speak in the voice of the other?

Justifying the authority of law may be the central problem that has driven legal philosophy over the last half century. The theories of legal positivism, of separating law and morals, founder in their attempts to justify authority without a moral foundation. Facts about acceptance fail to account for the normativity of law (for example, see Coleman 2001 and Moore 2000). On the other hand, natural law theorists falter in justifying values or articulating their relationship to legal demands such as due process (1999, 30). Ronald Dworkin's empire of law speaks of the soundest theory of the settled law, but is ambiguous between whether this requires the "best" interpretation as most consistent reading of the law or the "best" interpretation as the most morally defensible one (Dworkin 1986).If Siegfried, Dworkin's prototype Nazi judge, produces the most thoroughgoing of Nazi interpretations of German law, he cannot claim the authority of law; if he produces the morally most acceptable reading, he cannot claim to be a Nazi judge.

Add to this mix feminist theory and postmodernist fragmentation of the moral order. Berns's feminism is not essentialist; it rests instead on the voices of the other and the subversiveness of difference. Berns rejects several stereotypical feminist moves. She finds unsettling the ideas, drawn from Carol Gilligan, of differences in women's moral development or of a different, caring voice in adjudication (30-31). She rejects the experience of oppression as itself ennobling; it is also embittering (31). Instead, Berns analogizes the other to an ugly toadstool, pushing up from subterranean depths to break through the tangled (not seamless) web of law (12). She hypothesizes that one cannot speak fully as other and with the authority of law. Likewise, one can be an African-American judge, but cannot simultaneously speak as an African-American and as a judge, with all the authority of that role. Although the image of the judge typically is depersonalized (through robes, wigs, benches and other such devices), women's otherness points to the fakery of the apparent impartiality claimed by such trappings.

Yet it does matter who is judge. More judges of difference tell different narratives and will think subversive thoughts in the moment of the act of judging. The act of judging is on the one hand constrained by law and on the other hand a subversive moment, or it would be calculation rather than judgment (51). It is a moment of terrifying freedom, when the judge realizes that she must act and in acting take responsibility for what she does. She may be tempted to treat herself simply as a machine, but she will need to take responsibility for failing to act out of conscience. Ultimately, the rule of law requires both recognition of the boundaries of precedent and of the possibilities of boundary-breaking (57).

As the title indicates, Berns sees the role of the judge as performing and performative. Judges speak, through performance and rhetoric. Through viewing law as rhetoric, Berns believes, we can come closest to reconciling voices of the other with legitimating the violence of law. The rhetorical shift of law is the movement from being open to persuasion by others to being required to give reasons that are capable...