The Democratic Courthouse

A Modern History of Design, Due Process and Dignity

Linda Mulcahy, Emma Rowden

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429558689
• Edition: 1
• Topic: Architecture
• Subtopic: History of Architecture

The Democratic Courthouse examines how changing understandings of the relationship between government and the governed came to be reflected in the buildings designed to house the modern legal system from the 1970s to the present day in England and Wales.

The book explores the extent to which egalitarian ideals and the pursuit of new social and economic rights altered existing hierarchies and expectations about how people should interact with each other in the courthouse. Drawing on extensive public archives and private archives kept by the Ministry of Justice, but also using case studies from other jurisdictions, the book details how civil servants, judges, lawyers, architects, engineers and security experts have talked about courthouses and the people that populate them. In doing so, it uncovers a changing history of ideas about how the competing goals of transparency, majesty, participation, security, fairness and authority have been achieved, and the extent to which aspirations towards equality and participation have been realised in physical form. As this book demonstrates, the power of architecture to frame attitudes and expectations of the justice system is much more than an aesthetic or theoretical nicety. Legal subjects live in a world in which the configuration of space, the cues provided about behaviour by the built form and the way in which justice is symbolised play a crucial, but largely unacknowledged, role in creating meaning and constituting legal identities and rights to participate in the civic sphere.

Key to understanding the modern-day courthouse, this book will be of interest to scholars and students in all fields of law, architecture, sociology, political science, psychology and criminology.

1
Designing for democracy

The geopolitics of the courthouse

Introduction

How can our work better reflect several basic tenets of modern public life: first, the fact that, in our democracy, power flows from the people; second, the need to resist the technical, atomizing forces that divide us and to encourage those forces that unify and bring us together as a community; and third, the effort to prevent our government from being perceived as a hostile alien entity, but rather to emphasize through participation that it can and should amount to no more than our nation’s individual citizens themselves each showing a ‘civic’ face as each acts in his or her public capacity. Government officials and public architects alike are trying to rise to this challenge.

(Justice Stephen G. Breyer, 2006, p.9)

This book seeks to ignite debate about the relationship between architectural design, democracy, due process and the dignification of the people. It does so by exploring the ideals that courthouses are intended to symbolise in the public sphere and the sorts of behaviour and experiences that their design facilitates. More specifically, it looks at the ways in which the built form encourages or inhibits participation in, and scrutiny of, the justice system by ordinary citizens. It examines the apparent paradox that as England and Wales¹ have moved towards a mature representative democracy, citizens have become increasingly restricted and spatially marginalised in modern courts (Mulcahy, 2011). A key goal of this project has been to evaluate the justifications for such developments and to place the ensuing discussion in the context of broader debates about the contemporary role of justice systems in democracies. Drawing on a detailed analysis of public and private government archives funded by the Leverhulme Trust, this monograph charts how civil servants, judges, lawyers, architects, engineers and security experts have talked about English and Welsh courthouses in the corridors of Whitehall over the last 50 years. It also looks at a series of centralised design guides which formed the main output of these discussions. These prescribed how all courts across the country were to be designed and constructed but also allow us to analyse changing attitudes to design, the legal system and the people who populate courts over a period of significant changes in our political landscape. In doing so, they uncover a changing history of ideas about how the competing goals of transparency, majesty, participation, security, fairness and authority have been negotiated and the extent to which aspirations towards popular sovereignty, egalitarianism and participation have been realised in physical form.

The book seeks to contribute to a burgeoning interest in space and things in studies of law and legal phenomena. For many hundreds of years legal and socio-legal scholarship has largely been aspatial. The geopolitics of courthouse design is a subject that has been much neglected in academic and policy circles and very few scholars save for Resnik and Curtis (2011) have chosen to look at the subject in the context of debates about democracy. Important social, legal, architectural and political histories of the architecture of law courts do exist, but much of this literature deals with particular courts of national or historical significance.² In his work on the sociology of architecture, Jones (2011) has identified this approach to architectural critique as typical of the ways in which standalone buildings of national significance designed by critically acclaimed architects are canonised in teaching, the architectural press, the media and politics. Detailed accounts of debates and practice relating to the much larger number of mundane contemporary courts built since the introduction of universal suffrage have largely been neglected.³ The result is that there is a paucity of material examining the ways in which the state has attempted to frame a new sense of collective identity rooted in egalitarian ideals, how they have represented the new types of relationships between the state, the legal system and the citizenry, or facilitated new types of encounter in the democratic age. By way of contrast, this book’s approach can be understood as part of a spatial turn in legal scholarship which has heralded a new concern with understanding how legal subjects and matter interact (Bennett and Layard, 2015). Scholars interested in the geopolitics of space are now encouraging us to consider the specific ways in which design reflects, bounds and facilitates democratic practices in legal arenas.⁴ More specifically this literature prompts us to consider the role that law plays in giving birth to territory, jurisdictional boundaries and belonging. As Braverman et al. (2014) have argued, the ‘where’ of law is not simply an inert site but is inextricably implicated in how law happens and is understood.

Despite these new ways of looking at the interaction of law and space, discussion of courthouses commonly focus on the exterior ‘wrapper’ of the building and public areas.⁵ Scholarly accounts of buildings rarely talk about the social world within; the organisation of cells, the facilities available to the public, circulation routes, robing rooms, or even the spatial dynamics of the courtrooms which form the central performance space. By focusing on the recent history of the first major court building programme in England and Wales since the introduction of representative democracy, we chart the ways in which the performance of democracy, due process and dignity has been rendered possible in the modern justice system. Investigating the ways in which decisions have been made about where to place people in the space of the courtroom and the behaviour rendered possible by design is particularly important because policy has largely been left to a small group of government architects, engineers, security advisers, lawyers and accountants working away from the public gaze and relatively untroubled by external critique. The impact of the various design decisions they made on the ability of the laity to participate in the legal system in meaningful ways is evidenced in contemporary critiques of the court estate mounted by pressure groups (Blackstock, 2015; JUSTICE, 2016). Their work directly impacts on the impression of the justice system given to the thousands of victims, claimants, defendants, supporters and spectators attending courts every year.

As the first court building programme to have been launched since the introduction of universal suffrage, the modern court building programme we discuss here offered significant opportunities to revisit historic design precedents dating back to pre-democratic and even feudal eras. In the chapters that follow, we consider the extent to which those who worked on the court building programme for nearly half a century have been successful in imagining and commissioning justice facilities fit for a modern democracy. We have been particularly interested in the detail of who has been consulted about design principles, whether and how the use of certain spaces has been disputed, and the subtle and not so subtle ways in which a taken for granted hierarchy of users has been reinforced by decades of discussion. This book raises a number of critical issues about the health of democracy in advanced industrial liberal nation states and how we can claim to live democratic lives beyond the ballot box. The material we present raises questions about how new visions of popular sovereignty can be symbolised and operationalised in the built environment. How can we promote democratic habits by facilitating effective participation in the legal system? How are the ideals of egalitarianism and civic engagement represented in, encouraged by or encumbered by, physical form? How should political power in a democracy be symbolised and enhanced through the ordering of people and things in the modern courthouse? These themes have especial importance in the context of contemporary debate about the need to redress the democratic deficit or promote strong democracy in an era in which there is widespread disaffection with political and legal elites and a weakening of the civic sphere (Crouch, 2004, 2011; Barber, 2003). In the remainder of this introductory chapter we explore the relationship between the legal system and democratic forms of government, the ways in which egalitarian ideals shape our understanding of the trial, discuss the parameters of the empirical research reported and unravel the project’s key concerns and claims.

Courts in democracies

If we are to fulfil the promise of this book to interrogate the possibility of a democratic courthouse it is essential to give some account of what we mean by democracy and the relationship that this concept has to law and the legal system. This is far from being a straightforward task. Theories of democracy and debate about how it is best put into practice have taxed scholars, politicians and political activists since Aristotle first published Politics. Some minimalist definitions of democracy define it as a simple competition about who should make political decisions (Schumpeter, 1976 [2013]) and these narrow conceptualisations serve as a constant reminder of the need to be realistic about what we can claim for the concept. Writing in support of this modest approach, Przeworski (1999) has argued that the idea of democracy is in danger of becoming an altar on which almost all normatively desirable aspects of political, social and economic life such as accountability, equality, participation, justice, dignity, security and freedom are credited as intrinsic to democracy. There is a danger then, that democracy becomes repository for theories of the good life rather than an anchored and workable concept. In short, in becoming everything, there is a danger that the concept of democracy becomes meaningless. But there has also been extensive debate about the limits to which the scope and characteristics of democracy can and should be extended, with many concerned that democracy is limited by thin liberalism and representative forms which make it into a professional activity distant from the life of the citizen (Barber, 2016). Critiques of this kind are reflected in contemporary discussions about ‘participatory’, ‘deliberative’ and ‘cosmopolitan’ democracy which call for enhanced possibility for the governed to engage in collective decisions, and ‘radical’ democracy which provides a more fundamental critique of liberal democracy and rejects consensus as a moral imperative.⁶ Each of these approaches has different implications for the sort of rights that courts in democracies enforce and the relationships between the state and citizen that courts are expected to symbolise.

The relationship between democracy, law and the legal system has a complex history. Egalitarian ideals have a long heritage which can be traced back to non-democratic and even authoritarian forms of government. The notion that all are bound by the law regardless of their status expressed in the concept of the rule of law has for instance been traced back to the classical Greek period (Tamanaha, 2004) and Douzinas (2000) has contended that the assertion and upholding of rights in antiquity, albeit not universal, represents the first public acknowledgement of the sovereignty of the subject. In a similar vein, Resnik and Curtis (2011) have argued in their work on the architecture of law courts that courts did not suddenly transform into democratic public bodies after the introduction of representative democracy. Instead, the historical role of the courts in calling the powerful to account permits the claim that the courtroom and courthouse should be understood as proto-democratic spaces. A number of key constitutional principles, often associated with the idea of the rule of law, continue to place law and legal systems at the heart of discussions of the liberal concept of representative democracy.⁷ These include the expectation that laws can only be made by a body of officials elected by the citizenry in free elections, and the expectation that all citizens, including the wealthy and powerful, are equal before the law. Ministers and public officials in public service are required to exercise their powers in good faith and not exceed them; a practice underpinned by the principle of the separation of powers.⁸ The independence and impartiality of the judiciary is said to ensure that all cases brought before the courts will be considered by adjudicators without an interest in the case who are also free from interference from others in making their decision.⁹ These various powers are seen as legitimating the legal system because power is seen as being exercised on behalf of, and in the name of, the people.¹⁰

Much public law scholarship has focused on the maintenance of substantive rights which protects the key principles underpinning democratic government. These include the protection of freedom of speech and association which ensure that sovereign citizens in democratic states are able to choose their lawmakers and express their preferences in free, fair and regular elections.¹¹ In this sense law forms an essential part of the architecture of democracy. But broader expectations of law’s role in rendering the citizenry equal have also flourished in recent decades. In addition to political rights social, economic and cultural rights have now been recognised in a series of United Nations Conventions introduced since 1948.¹² For Diamond and Morlino (2004), the creation and enforcement of such entitlements as the rights to education, health, housing and welfare have become inextricably linked with contemporary notions of democracy, and Lord Bingham (2007) has argued that recognition of such obligations is fundamental to contemporary notions of the rule of law.¹³ In acknowledging the importance of the social and economic conditions of the citizenry alongside political rights, it has been argued that liberal legal regimes increasingly attend to the needs of particular disadvantaged groups rather than treating the populace as a homogenous group of equal rights holders (Rosanvallon, 2011). This means that some contemporary theories of democracy, most notably radical democracy, have moved beyond a simple notion that all are equal, to encompass recognition of special rights for those liable to be discriminated against on the basis of their gender, sexuality, race, religion or state of health (Diamond and Morlino, 2004). Discussion of the acquisition of such special rights enjoyed only by the few commonly centres on fundamental concerns about distributive, rather than just formal, justice. These different conceptions of what we mean by rights in a democracy provide an important backdrop to discussions in this book about how the laity should be treated in the civic sphere.

Democracy in courts

While debates about the role of courts in democracy have been extensive, it is less common for scholars to focus on the realisation of democratic principles in courts. The extent to which the trial might be seen as democracy enhancing is largely dependent on the theory of the trial that one subscribes to, with minimalist concepts limiting the function of the trial to mere findings...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• List of figures, charts and tables
• Table of cases
• Table of legislation
• Abbreviations and acronyms
• Preface
• 1 Designing for democracy: the geopolitics of the courthouse
• PART I Towards a democratic courthouse
• PART II Professional voices
• PART III Lay voices?
• Appendix: List of archival materials consulted
• Index