Boundaries and Barriers: The Social Production of Space in Magistrates’Courts and Guardianship Tribunals
Dr David Tait
Department of
Criminology
University of Melbourne
© all rights reserved
Introduction
But it is also possible to think of space as something which is produced
anew in each ceremony, in each hearing, in each judgment. The court
hearing may be described within a set of spatial metaphors as an
interaction in which boundaries are developed and barriers established.
In the conference at
which this paper was originally given, the participants were welcomed
onto Wadi Wadi land, land under the shadow of Mt Keira, some of which is
used by the University of Wollongong. This welcome, by Barbara
Nicholson, can be read spatially as drawing participants into the circle
of valued visitors. But there was also an establishment of boundaries:
to work under the shadow of Grandmother Keira (Mt Keira) indigenous
traditions required respect for the limitations on use of the land to
womanly, including educational, tasks. The space that is produced
consists of welcomes and exclusions. It defines places of meeting and
barriers to prevent contact, hierarchies of authority and perhaps
alliances across status lines. This view of space as relative to human
action, or socially produced, can be traced back to a number of origins.
It can be seen in the work of the Chicago School of urban sociology,
which characterised urban space in terms of the functions it served, the
transitions it was undergoing, and the relationships between the
inhabitants or users of the space. It can also be found in the work of
Lefebvre When we apply this approach to courtrooms, we begin
looking not at objects, but at subjects carrying out activities. Rather
than examining ornaments, we focus on performances. The basis for this
analysis comes from the French judge and philosopher, Antoine Garapon.
Justice as performance suggests a drama continuously
presented and re-presented. The props might stay the same but each
performance is a new show with a new cast. The professional troupe
re-shuffles its members, but new extras (known variously as defendants,
witnesses, jurors and applicants) are recruited for each new production.
Judges, court officials and lawyers may be seen as the
‘regulars’ in the court dramas. But what makes the dramas
memorable are the others. How are they welcomed or excluded, are
boundaries drawn to keep them out or bring them in? It is useful to
start with less ornate settings of justice, such as lower courts or
tribunals, because we are unlikely to become overwhelmed by the grandeur
and lavishness of the furnishings and more likely to notice the people
who occupy and transform the space. This approach can also be applied
to more formal settings, such as the Palais de justice in
Paris. Garapon’s theory of rituals
One of the more
interesting reforms in justice processes in English-speaking
jurisdictions is known as restorative justice. One of the major origins
of this movement was in the Yukon, where Judge Barry Stuart re-organised
his courtroom into a circle.
Courtrooms can be thought of as fixed aesthetic
objects, with inherent properties resulting from decisions by
architects, planners and project managers. Physical objects which can be
described in terms of their reflection of classical antiquity,
nineteenth century architecture of intimidation, Attic principles of
virility, masculinity and boldness. ‘Good’ designs might be
described as providing dignified spaces with natural lighting, good
acoustics and privacy. Most of the debate about court design operates
within this paradigm. This is a helpful approach: it can help us see
where architects got their inspiration, which colonial master left his
imperial footprint on the area, and which style the monument attempts to
use.
English-speaking writers about rituals tend to be rather dismissive
of them. The word ‘ritual’ might be qualified with the
adjectives ‘empty’ or ‘meaningless’. Justice is best
served, we sometimes argue, by using plain English, avoiding ritualistic
posturings, and sticking to the evidence. There have been numerous
English-language studies of court rituals, by Garfinkel, Carlen,
McBarnet, King and others.
Garapon is similarly optimistic about rituals. For Garapon, rituals are not only important for preserving decorum and dignity. They are fundamental to the production of justice. Without the correct rituals, there can be no justice. This is not just ensuring due process. In Garapon’s view, doing justice is a political and symbolic act as much as it is a legal one. It involves revealing the power of the state to punish, to forgive, and to turn back the lynch mob. It involves restoring the social harmony that was threatened by the matter now before the court. In giving judgment, judges do far more than make decisions about individual cases. They re-live symbolically the foundation of the state, they re-affirm the collective good and they embody sovereignty. Indeed, in secular republican France, judicial robes provide a link to royalty and even the sacred.
This sounds rather nostalgic, maybe even reactionary. But there is also a practical dimension. Without the help of symbols and rituals (Garapon writes), law would remain simply an hypothetical or illusory idea. Law needs symbolism to be transformed into a living reality, a concrete experience.10
Symbolism and rituals are what makes law effective, what produces justice. We can roughly translate the word ‘rituals’ as ‘routines or practices which symbolically link current events to a wider framework of meaning’. These practices need to make sense to the participants, to resonate with their memories and expectations. They need to keep changing to remain powerful. Rituals also have a transcendent quality. The temple of justice stands in contrast to ‘the chaos of the profane world’.11 Judicial time bursts into the everyday rhythms of life,12 transforming the mundane order according to its own purposes. Space and time are re-configured by judicial rituals.
Some rituals, however, are unhelpful, and some symbols don’t work. Functional design, like some of the newer local courts in Australia, get a thumbs down from Garapon, who refers to functional designs as ‘architectural silence’.Plea bargaining and other types of informal justice are also rejected because they replace publicly visible rituals with private chats, this is given an even harsher appellation as ‘American’.
Just because the rituals bring together people into a shared performance it does not mean the experience is homogeneous. The doors, the columns, the security screens: these do not have a single meaning, but signify different things according to whether you pass through them in a business suit or a wheelchair, in robes or handcuffs. Garapon’s particular concern here is victims, and he echoes the feminist criticisms of defence examination of sexual assault victims.
The issue that comes out of his work is the question: which judicial practices do work to produce effective spaces for producing, creating, performing justice? Conversely, which rituals undermine fairness, or devalue the legal subjects it deals with?
Garapon’s theory can help us examine the everyday justice dispensed in lower courts and tribunals. But what does it mean for a ritual to ‘work’? The key question for Garapon is how to develop rituals, architecture, language which recognise the reality of courts as the sites of violence, state power and arbiters of punishment; but also incorporate democratic principles of fairness to all, openness, accountability and transparency.
In his own jurisdiction, children’s courts, he talks about it as respecting the individuality and integrity of the person by talking directly to them, welcoming and thanking them, using the respectful form of address ‘Vous’ not talking down to children by calling them ‘tu’, and in jury trials, always letting the lay members speak first. Garapon provides a theory, he does not provide a set of methodological tools to measure performance. The author is currently developing a project (with Garapon) which will attempt such a task. But it is possible to suggest some possible ways of analysing court or tribunal practices which combine Goffman’s 13 social psychological approach to interaction in terms of barriers and boundaries with Garapon’s focus on courts as instruments of state power carrying out rituals to restore social order.
Two case studies are provided. One is an analysis of how guardianship courts and tribunals draw boundaries and shape alliances in the hearing process. This supports Garapon’s argument about the importance of rituals in delivering justice. The other is a story about the process of recording information in magistrates courts. This takes up the issue of how the performance is experienced by marginal participants, and how the rituals bring past and present together in the moment of judgment.
Rituals in guardianship tribunals
Guardianship Boards in various Australian states appoint substitute
decision makers for incapable adults who need decisions made about
financial or personal matters, or substitute consent for medical
treatments. This job is done elsewhere by courts, in the US by probate
or superior courts, in New Zealand the Family Court, in Belgium juges de
paix, in England and Wales the Court of Protection (part of the High
Court), and in Scotland by the Court of Session.
The hearing is a crucial part of the process. It is the hearing where a decision is made whether to transfer part of a person’s citizenship rights to someone else to take care of. Or whether to restore these rights. So it may provide an opportunity to avoid unnecessary intrusion into the person’s civil liberties that a guardianship order may pose. It may also be the only time all the parties get together and face the issues.
So how are hearings managed? One way they can be understood is in terms of the social space defined and configured by the hearing. Anne Vittoria (using Goffman) provides such an analysis of a guardianship court in Kansas, and her characterisations are generally consistent with those reported for other courts.14 The key terms are alliance, boundary and exclusion.
Vittoria reports that the courts form an alliance between medical professionals, lawyers and the judge. They are drawn into the inner circle of the court. The ‘ward’ was almost invariably ignored, silenced or at best humoured. A boundary was drawn between these ‘normal’ people and the person whose life they were talking about. The ‘ward’ was marginalised and excluded from effective participation. They would frequently be talked about as if they were not there.
Architects might be called in to help. In the New Zealand Family Court, according to one of the lawyers who regularly practised there, the subjects of the application would occasionally try to find out what was going on by leaning over the table and trying to read what the judge was writing about them. So they built a barrier at the front of the judge’s desk (private communication from legal academic undertaking research on Family Court).
Vittoria argues that the courts rarely challenged medical evidence or contested agreements reached between lawyers. This is widely reported in the literature on guardianship courts. I recall interviewing the New Zealand Family Court judges about their guardianship responsibilities and asked them what they did when there was a dispute between the lawyers, such as about whether guardianship was necessary. Their reply was that they would ask the lawyers to go away and try to come up with a consensus. Guardianship court procedures, whether in North America, or in New Zealand, tend to be based on a consensus between professionals, with very little role for the person for whom an order is proposed. As a result, courts grant most of the orders sought and most of the orders are for plenary powers.
Terry Carney and I did detailed studies of guardianship tribunals in NSW and Victoria in 1989-92, and our findings were that the tribunals behaved radically differently to courts.15
The tribunals made a careful and systematic effort to incorporate the person into the proceedings. In Victoria, a Board member walked out and invited the parties in, introducing everyone by name. Attention was paid to seating people in a comfortable arrangement. There were no private huddles between the Board and privileged professionals. Documents were generally public and accessible to all; participants had had a chance to read and absorb the information in reports. When information of a potentially embarrassing nature to the client was contained in psychiatric reports, the Board would ask the person’s permission to summarise it, and would do so in a tactful way. When the Board wanted to deliberate, they would retire to a small office and leave the parties in the comfort of the hearing room.
The tables were placed to ensure everyone could write if they needed to. In Victoria, a space was placed between the Board table and the table for the parties. I asked the President of the Board whether this was so the public could not read what they were writing. But the president (whose handwriting could not be read right way up let alone upside down) replied that it was because someone had leaned across and nearly strangled him once. Spaces have practical as well as symbolic uses.
An alliance was offered to persons subject of applications to the Board, their views were listened to, and they would be told ‘You are the most important person here today’. The offer of an alliance was sometimes refused, particularly by those who were convinced they did not need an order.
An example of the forming of an alliance can be seen in the interaction between the NSW Board and Mrs T. The Board takes up a specific problem raised in a report with a general question they sometimes used to check short-term memory:
Board: This report says you might have a bit of a problem with your memory. It says you sometimes lose your key.
Person: I’ve never lost my key yet.
Staff member: She doesn’t remember.
Board: Do you know who the Prime Minister is?
Person: I’m not sure. I remember Menzies.
Board: You told us before you were a cook. What dishes were you famous for?
Person: Souffles.
Board: They are concerned that you are not looking after yourself properly.
Person: Nonsense, nonsense! (Gazes out the window). Look there’s the Sydney Harbour Bridge. I remember the day it was opened. I walked half way across it! There was a man on a horse who cut the ribbon with a sword.
Board: You’ve got a good memory.
Another Board member (to Mrs T): Your eyes seem pretty good then. You can obviously see the Harbour Bridge.
Person: Do you think I’m deaf?
Board: You seem a bit hard of hearing.
This interchange discussed Mrs T’s short-term and long-term memory, hearing and vision. It combined written evidence, her own opinions and direct evidence obtained during the hearing. Just as importantly it incorporated Mrs T into the hearing process as a valued and useful member of the hearing alliance.
Unlike the courts there was no automatic alliance with doctors. Medical evidence was frequently challenged, particularly if it was not current, and at the NSW Board doctors were sometimes given intense questioning if they had exceeded recommended drug dosages. Lawyers seemed to feel uncertain about their role, particularly if the person they said was their client appeared to be incapable of giving instructions.
Whereas courts had regarded a consensus as necessary to get an order, the tribunals almost perversely regarded a consensus between the parties as a good reason not to grant an order, since informal arrangements might work to arrange a nursing home entry or make regular rent payments. Applications were regularly rejected and orders restricted to areas of current need. This did not necessarily produce social harmony, one of Garapon’s objectives, and some family members objected strongly to a group of strangers telling them that their 18 year old daughter did not need a hysterectomy.
Further, because of the inquisitorial nature of the process - was the person really unable to take their own decisions and remember what they had decided? Would it really help to have a substitute make those decisions? And was there a pressing current need? - many hearings were far from orderly or harmonious.
The Victorian Supreme Court did attack the Victorian Guardianship and Administration Board for their procedures on at least one occasion: Mr Justice Gobbo alleged that there was a unduly ‘cosy’ relationship between the Board and the Public Advocate’s office. In fact this accusation accurately applies to the way guardianship courts routinely allow cosy alliances between professionals to exclude the person for whom the hearing is called.
Our conclusions were that guardianship tribunals in NSW and Victoria (and probably in Western Australia, South Australia and Tasmania as well), deliver substantive outcomes which were consistently better than courts anywhere else in the world. By ‘better’ I mean that they were more consistent with the legislative requirements to ensure the person did have a decision-making disability and a current need for a proxy, and to take account of the views of the person. Inclusion of the person in the process helped to ensure that the Board could form an up-to-date impression of the person’s capacity, provide some insight into what their wishes were, and identify solutions that were least restrictive. Partly for this reason, tribunals were more protective of civil liberties than equivalent courts.
This is a remarkable achievement, one of the few areas where we can point to a legal reform that made a substantial improvement in outcomes and process. Usually there are unanticipated consequences, the problem just shifts elsewhere, the powerful still get off, the victims still get re-victimised. What is important in the context of this paper is that the revolution came about not just through legislation -most other countries had similar legislative reforms. It came about through re-shaping space (moral architecture if you like), the drawing in of lay participants into a hearing alliance, the creation of shared spaces, the placing of the person subject of the application at the centre of the process. This is consistent with Garapon’s view that correct rituals are more likely to produce justice (just outcomes).
There were several features of the hearing which tended to serve the wider symbolic role that Garapon argues make them rituals. These include the association of the person’s story with the wider story of humanity (ageing, decay, transfer of family responsibilities to the next generation), and the link to citizenship and state authority (power over property, the body, freedom of mobility). Not all hearings would overtly mention these issues, but they formed part of the conceptual backdrop of the routine practices of tribunal members.
It might be argued that these tribunals are somewhat marginal to the wider story of justice. They belong, after all, to a protective jurisdiction, rather than a criminal one. The subjects of proceedings are not ‘offenders’ but vulnerable people who may need someone to consent to their health care or make decisions about their housing placement. It would not of course be possible simply to apply the same rituals developed in one jurisdiction to the rather different setting of a criminal court. In particular, the inquisitorial procedures which are appropriate in a protective jurisdiction would undermine the adversarial basis of criminal proceedings in Common Law jurisdictions. From this case study of two tribunals, the lessons for criminal courts (or civil courts for that matter) do not take the form of a set of specific practices which can be borrowed. The lesson is probably a more general one: that rituals produce identities, roles, statuses; and that by changing the rituals we may transform these. Do we wish to produce a set of identities in the courtroom in which the legally trained participants are more valuable than others? If not, it is more than physical architecture which must be changed. How these changes might be brought about is an empirical question. One of the few consistent lessons of court reform experiments is that interventions almost never work as intended and frequently make the situation worse rather than better. 16
Recording rituals in magistrates courts
Recording the
performance is an important part of many judicial processes. Writing
down summaries of evidence, decisions or questions is an important part
of the activities of judges, lawyers and other courtroom participants.
In a busy high-volume court like a local court or magistrates court, there is a lot of information to be provided, digested, produced, and recorded. These days, this requires the judicial officer to sit behind a computer. The following story is about an interaction between two busy scribes: a magistrate working hard recording information on his computer and an equally busy student writing about a magistrate recording information on his computer.
It is probably not uncommon that when we see people whispering and laughing near us we might suspect that they are talking about us. Magistrates must get the same feeling when they see members of the public taking notes at the back of their courtroom. And just as we might be curious to know what people are saying about us, so magistrates must be dying to know what people are saying about them. Magistrates, if they are very unwise, can use their authority to satisfy their curiosity.
The student in this story was in a suburban magistrates’ court in Melbourne carrying out an assignment for a research methods class, looking at judicial rituals: symbolism, organisation of space, the use of silence. The magistrate looked up from his computer screen and observed her taking notes. He asked if she had written about him. She said ‘Yes’. So he asked her, in what she described as ‘a very forceful tone’, to read them out to the court. She recorded later, (and I quote this with her permission):
He peered over his glasses waiting for a reply. I didn't know what to do, or say. I felt forced into saying something I didn't want to. And I knew if I was honest I wouldn't be winning any friends. So, of course, being in a court room I was compelled to, no not lie, but say it outright.
(And this is what she read):
I found the Magistrate offhand, rarely having eye-contact with anyone especially defendants. He seems in a great hurry, rude; and very bored with dealing with other people’s lives and their problems.
There was a silence, then the magistrate responded: "I don’t have time for eye contact, I have to work on this stupid computer".
There are several morals of this story. The obvious one perhaps is not to ask people for their honest opinion of you in case they give it. But more importantly it is a story about the way computers re-shape the architecture of the courtroom, and more generally the way the process of delivering justice intersects with the process of recording justice. The student was recording her impressions of the process while the magistrate was recording his judgement and announcing them. Her impression and his reaction confirmed that the recording of the process for the future was in some ways impairing his ritual performance in the present. What she saw as rudeness he took as duty. It is perhaps ironic that the great communication tool of the age should become in the courtroom the icon of non-communication, the barrier to effective interaction.
The interaction could also be read as an attempt by the magistrate to offer an alliance to members of the public, to seek their views and give them a chance to talk about their experience in their own words. The incident also illustrated two other features of rituals which Goffmanidentifies.17 The first is the way ‘back-stage’ behaviour is an important part of the overall production. This includes the use of asides, off-the-record comments and intrusion of the ordinary world into the formal world of the courtroom, as well as the casual chatting which goes on when the magistrate is out of the courtroom. The formal rituals stand out more clearly when there is a contrast between on-stage and off-stage behaviour. The second aspect is the way rituals may fail, resulting in embarrassment, loss of face or disruption of courtroom impression management.
This incident was not necessarily typical, although it is consistent with the claims made by Carlen, McBarnet, King and others about the way victims and women experience justice at court. Other students have reported experiences of magistrates who acknowledged defendants, treating them with respect, and ensuring they understand what is going on.
The story is also an illustration of the argument that it is not the physical surroundings that produce experiences of humiliation or inclusion (although these may accentuate or reduce them). It is the way in which the social space of the courtroom organises the treatment of individuals: being welcomed into the common space, or excluded; being affirmed or devalued; being treated as a valued person in the centre of the action or a deviant to be confined to the margins.
Conclusions
It might be said that of course criminal courts
are not welcoming places for offenders, that would only encourage them.
And of course protective bodies like guardianship boards can afford to
be polite to people because that is the nature of their jurisdiction.
However the overseas evidence about guardianship courts is that they
deliver the same sort of disrespect and humiliation that criminal courts
are said to do. So the type of jurisdiction does not seem to account
for it.
This paper has argued that physical architecture and furniture alone cannot help us understand the social alienation, distance and exclusion many lay users experience in courts. Perhaps the barriers erected in the New Zealand Family Court may have restricted the ability of participants to read the notes of the judge, and perhaps the presence of the computer in the court may have distracted the magistrate from listening to the parties. But there is a considerable variation in the guardianship hearing rooms in Victoria and NSW and large differences between the old Melbourne Magistrates Court and the new. And differences in design seem to have little to do with the success of the ritual performances. But what observers, victims, and applicants experience is the way these spaces are used: whether they are welcoming (or whether barriers are put up), whether dignity is respected, whether the participants are included in the courtroom alliances.
So the conclusion is that it is possible for judicial bodies to use space in such a way that participants not only are likely to receive just outcomes but experience rituals which are affirming and respectful of human dignity.
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