ABSTRACT
In this chapter, I want to canvass the gap between process and persuasion, a gap that mirrors that between law and justice. Process, persuasion, the idea of a gap, the image, introduced in the last chapter, of justice as other, as not law, the overwhelming conceptual freight embodied in these terms threatens to swamp what set out to be a simple introduction. Process, ambiguous at best, means, in this context, the way in which the judge reaches a decision, the interaction between what happens and doesn't happen in the courtroom, the legal materials 1 and the mind and heart of the individual judge. 2 The gap between process and persuasion is marked, on one level, by the act of judgment, the concrete moment in which judgment is (orally) handed down in the courtroom. On another, very different, level it is marked by the experiential shift from being (almost by definition) open to persuasion to being (at some level) irrevocably committed to the persuasion of others. And just who these others are is necessarily ambiguous, context laden. A single judge sitting at first instance may seek to persuade a potential appellate tribunal, justify her decision to a more or less diffuse professional community. In some ways, the act of producing a written judgment signifies that the case was out of the ordinary. The formal written judgment is no longer the norm, particularly at first instance. An appeal judge has further and weightier reasons for producing a written judgment, whether she, on the facts, upholds the judgment at first instance or overrules it. Where the appellate judge sits on an intermediary tribunal, it seems to me that the written judgment must face two ways at once. It must justify the decision of the appellate court to the parties and to the judge at first instance. It must also extend persuasion to the future, to a further appellate court, perhaps, or to another court sitting on another matter in the future. Where the written judgment is crafted, not by the judge herself, but by her clerk (or one of her clerks) persuasion becomes more complex still. Here, I believe, it is linked with another question, that 38of authority. By whose authority and by what warrant does one without authority, save only that which might be delegated by another, seek to persuade and of what, of his own thoughts or those of another? Douzinas, Warrington, and McVeigh offer an account that is, at least in some respects, parallel.
