One fascinating historical study is that of the dress of lawyers and judges. In general in all the European countries lawyers have historically worn some type of robe to demonstrate their status and judges have worn robes specific to their work. In the British Isles, the fashionable wigs of the eighteenth century also came to be attached to the dress in court of members of the bar. it is a topic that has never been properly researched in Scotland.
These remarks are provoked by the approach made to your blogger by Scottish Legal News aout the recent Practice Note on Legal Dress issued by the Lord President, Lord Carloway. See https://www.scottishlegal.com/article/decision-to-dispense-with-judicial-garb-comes-in-for-criticism . This was picked up by The Times on 5th November.
Courts are hierarchical, with dress indicating position and authority. The only judges who traditionally did not wear robes for hearing cases were those of the House of Lords, because they sat as peers as a committee of the House of Lords. This was a practice continued in the new Supreme Court, where it has also become the rule that whether counsel wear gowns and wigs is at the option of those appearing. One understands that there is social pressure from some counsel, who see themselves as “modern” and “social democrats”, not to wear wigs and gowns before the Supreme Court. This means that those who prefer to be robed and wigged are put under pressure to conform to a new set of “norms”, or be identified as fusty for not “getting with the programme”.
Of course, hierarchies are not much to the modern taste; but they exist. It will always be evident who is in charge in the court, the woman or man sitting on the bench. But dress reinforces and eases identification of the roles played by each person. It defines identity. Getting rid of dress does not suppress hierarchy, it just makes it more obscure and difficult to identify.
When it was decided in 2014 that judges would no longer wear wigs and gowns in the Inner House of the Court of Session, and would no longer require that counsel wear wig and gown, the Faculty of Advocates decided that their members would nonetheless continue to wear wig and gown in addressing the Inner House.
The new practice note issued by the current Lord President means that judges, except when hearing witnesses testimony, will not be robed in the Outer House, nor will they require that counsel wear wig and gown. A poll conducted by Scottish Legal News indicates that lawyers are overwhelmingly opposed to the change. See https://www.scottishlegal.com/article/scots-lawyers-massively-in-favour-of-retaining-wigs-and-gowns According to The Times on 5 November, Gordon Jackson, Dean of the Faculty of Advocates, has stated that advocates could still continue to wear court dress if they liked. If he is correctly reported, one can foresee that the practice will progressively vanish, even though we know that in 2014, the majority of the Faculty of Advocates wished to retain court dress.
In 2014, the then Lord President was quoted by the BBC as stating that to no longer wear robes for civil appeals “makes sense in this day and age”. But this is no argument. If a student wrote this in an essay, one would ask: What do you mean? What do you mean by “making sense”? In what way does it make sense? and so on. It is in fact rather meaningless. One is left to assume that, somehow, not wearing robes is more modern; but perhaps it makes sense in a way your blogger does not see. No better explanation is offered for the new development. But what is vague is always questionable.
Dress in court is part of the corporate if diverse identity of the legal profession. As far as your blogger is aware, in most of Europe lawyers and judges were robes; some considerably more elaborate than those used in the British Isles. One friend f your blogger’s is always proud that in court he always wore the judicial robe of his grandfather. It marks continuity in structures, the type of continuity that permits development and change, without dislocating ruptures and stress. In this it is like the law itself, routed in the past to permit future development.
Scots law is backward-facing; it develops incrementally by precedent, with some statutes when necessary, and all lawyers know that statutes are far from offering a panacea. Adam Smith was wise when he wrote about the evils of men of system. One also thinks of Walter Scott’s character, Vitruvius Whigham, who ends up destroying what he wishes to reform. While one would not wish to exaggerate, it is difficult to know where such reforms end or what their consequences can be, particularly when the reasons for them are so unclear. If not robes, then why suits? Why not tracksuits and trainers – comfortable, functional and modern?
There are many factors and social practices that give authority to the law. Interfering with them is arguably dangerous and not to be entered into lightly. With our unwritten constitution, recently rather abused, it is important to have respect for the institutions of the past. Without them, we are without foundation, or, to change the metaphor, become rudderless. These are the institutions on which depend the liberty of the subject and cultural security.
Walter Scott was all too aware of this when, in response to proposed Whig reforms in 1807, he told Francis Jeffrey: “little by little, whatever your wishes may be you will destroy and undermine, until nothing of what makes Scotland Scotland shall remain.” Perhaps he exaggerated; but these are words to ponder