Judges, Judging and Humour

This chapter surveys the wealth of humorous tales told about British judges and advocates from the late eighteenth to the late twentieth century, particularly in the criminal courts over which the judges presided, where humour either designedly or inadvertently could provide a disruption of the normally solemn proceedings. Published and archival collections of such humorous anecdotes largely refer to what happens in open court, including witty remarks by the judges and impudent ripostes by barristers. Lawyers collected and treasured such interchanges, together with tales of judicial eccentricity, as part of the folklore of their profession. Published as anthologies, they found a popular audience as well. In the last half of the nineteenth and the first half of the twentieth centuries, trials were extensively reported in the press and judges became part of an Establishment celebrity culture. Some judges were tempted to play to this press gallery by producing witty bons mots. Other anecdotes deal with mishaps in court. Some are apocryphal, or else floating tales ascribed to legal figures known to be humorously acerbic. The distinctions between formal set-piece jokes about judges (of which in contrast to the United States, there is no discernible body in the United Kingdom) and humorous anecdotes (which purport to be true stories full of accurate detail) are analysed and discussed. Over time, anecdotes evolve variants and are switched to new settings and targets. Anecdotes are becoming more portable and context-free and thus increasingly taking on much of the structure of jokes. The boundary between the two categories is becoming porous.

There are far fewer jokes about judges in circulation in the United States than there are jokes about lawyers. Unlike the generally critical tone of lawyer jokes, American jokes about judges reveal an idealised portrait of the judge, exhibiting a specificity and detail that is unusual (or absent) in jokes about other occupational, professional, or governmental roles. The jokes reveal a detailed set of expectations about judges by portraying instances of violation of those ideals. I surmise that, to a considerable extent, it is the judges themselves along with others in the professional legal community who are the producers, tellers and audience for these jokes. It remains to be seen whether and how the changing role of real-life judges will be reflected in the corpus of jokes about judges.

Conventional understandings of the judicial role emphasise impersonality, leaving little space for humour. However, the courtroom is a workplace where different professions come together, each highly dependent on the other. Solicitors, barristers and police prosecutors (in lower courts) provide information or undertake tasks necessary for judicial decision-making. Although judicial officers in both higher and lower courts have considerable formal legal authority, their direct supervisory power over the out-of-court work of these other professionals is limited. This observational study of Australian lower courts finds that one strategy magistrates adopt to bridge this gap is humour. A magistrate’s practical use of humour can help judicial officers meet organisational challenges such as time management, while the normative use of humour delineates inter-professional roles and obligations.

This chapter analyses humour from an emotion sociological perspective, linking humour to power, status, and group solidarity. It draws from about 300 observed trials and interviews with 43 judges and 41 prosecutors from four Swedish district courts. Humour is sometimes skilfully used as a strategy to ease tension, relieve boredom or to reprimand. It is initiated/allowed by the judge, but high-status lawyers or prosecutors may take the initiative. Judges may use humour to uphold an effective and smooth procedure, attenuating their own power. It is generally unacceptable to laugh at the expense of lay- (low-power) people present in court. Inter-professional humour takes place in intermissions during the hearings, while trials running over several days may include the defendants in the semi-backstage inter-professional joking. Most in-court humorous incidents are unintended, where laughter is suppressed or released depending on the judge. Humour has different functions and expressions frontstage (in court) and backstage (office, lunch room). Observation of both arenas reveal its shame-management function in inter-professional relations. While the judges’ backstage area teems with jokes about embarrassing procedural mistakes, prosecutors’ backstage humour more often deals with the foulness and tragedy of criminals and crimes.

On a July morning in 2013 a box of a popular English branded confection called “Cherry Bakewells” appeared in the court of the Lord Chief Justice of England and Wales. It generated much laughter. The event was the swearing in ceremony for Dame Julia Wendy Macur as a judge of the Court of Appeal. If her appointment was a cause for celebration, the backdrop to the event was the serious business of judicial renewal and the gender composition of the judiciary. Neither topic is a laughing matter. Drawing upon data generated through the observation of 18 swearing in events this chapter uses the gender/ humour interface to examine the gender dynamics of the social world of the judiciary as an institution.

While the Brazilian Constitution explicitly guarantees a person’s honour, image and privacy, it also protects the right to make public any scientific, artistic or intellectual idea. When cases involving humour come to court, the balance of judgment in each case lies in the hands of the individual judges, although some guidelines are provided by superior court jurisprudence. Many of the principles commonly applied to resolve cases involving humour are chiefly applicable to the serious press i.e. they concern issues of truth, objectivity and the public interest, resulting in guidelines that are not always useful or relevant to humorous expression. Some legal precedents emphasise humour’s important role in mediating sharp and effective criticism of political and cultural social aspects. Despite this, some courts point to aesthetic issues in individual pieces seen as breaching the law with their tastelessness or exaggeration. Humour cannot however be limited to refined irony and “clean” jokes: it is often subversive and disrespectful. In the misconception of some courts, it appears that humour must be harmless to be legal. This may be tied to the Iberian inheritance of Brazilian culture which has left indelible marks on the legal treatment accorded to honour, especially as concerns sexual behaviour. One case about the mockery of another judge provides a privileged point of view for understanding the values at stake when humour inadvertently walks into the Brazilian court.

This chapter explores the intersection between judges and humour by focusing on the substance of judicial opinions in the United States. Judges have the opportunity to rule on legal liability for jokes in both the criminal and the civil contexts. Both of these contexts are evaluated, focusing primarily on US law with comparisons to cases from other countries. Criminal prohibitions include putative jokes about inflicting violence on aviation targets, about the President of the United States and about racial minorities. For civil cases, the chapter explores judicial regulation of humour in contract, trademark, employment discrimination, and defamation cases. The chapter’s analytical focus is interdisciplinary and includes discussion of constitutional free speech doctrines as well as humour theories developed in the humanities and social sciences. An overriding goal is to document patterns in humour regulation so as to provide guidance for courts, academics across different disciplines, and for humourists who seek to understand and predict legal regulation.