According to recent research, 70 per cent of judges were privately educated and 78 per cent went to Oxford and Cambridge. Is that good or bad? Being a judge requires an exceptional mind, and it isn’t odd that clever people come from schools famous for educational success and from world-class universities.

The basic argument against privileged paths to judgeships is this. Law is shaped by judges and affects everyone. So who gets to do the judging is important. As law is a very social enterprise, it is unfair if judges come from just a few leafy avenues in any given town. Biologically, brain capacity is not linked to post codes. A multicultural society whose judges all have the same background can feed into the law only a relatively narrow splinter of experience. And privileged access to anything these days can be seen as unjust as people generally want the same rules to apply to everyone equally - in fact the word “privilege” comes from the Latin privilegium, meaning “private law”, a law applying to an individual.

The opinion that it doesn’t matter who our judges are provided they are technically good at law was put in an acerbic way by Roderick Pitt Meagher, a New South Wales Court of Appeal judge. He countered the “need for diversity” argument by asking, “if 30 per cent of the community are cretins, then in all fairness should not 30 per cent of the judiciary be cretins?” That, of course, is a rather daft argument because there is nothing about being female, or black, or Asian that stops a person from becoming a good judge whereas a cretin, by definition, can’t read and understand law books so society could not possibly have cretins as judges.

Judges make law, and what they have declared often reflects who they are. For example, consider the way the law developed to apply to women. For centuries, until 1992, it was not a crime for a man to rape a woman if she was his wife. The people who fabricated this rule and perpetuated it for centuries were all male judges many of whom regarded women as inferior humans.

Judges made many chauvinistic rules such as one saying wives couldn’t make contracts in the same way as their husbands, and one that said women were not legal “persons” entitled to become officials or lawyers. Judges proclaimed that although a man had a defence to murder if he killed another man whom he caught having sex with his wife, a woman didn’t have a defence if she killed her husband after catching him with another woman.

The judiciary is supposed to be a fountain of wisdom, so even prejudice spouted from judges will be heeded and has nourished social bigotries. Judges have said such things as “You do not specify a ground by giving what may be called the woman’s reason and saying ‘because I say so’.” (Mr Justice Croom-Johnson, 1945) “It is well known that women in particular and small boys are liable to be untruthful and invent stories.” (Judge Sutcliffe, 1976) To a woman witness who wanted to be addressed with the title Ms, it was said: “I've always thought there were only three kinds of women: wives, whores and mistresses, which are you?” (Mr Justice Harman, 1991)

Centuries of chauvinism from authoritative figures can affect the mind-set of ordinary people. In an American study of prejudice in 1968, Philip Goldberg gave 140 female undergraduates a set of articles. They all got identical articles signed by “J. T. McKay”. Within the texts, though, half the articles named the author as John T. McKay, and the other half of the same articles as Joan T. McKay. The students rated the articles for things such as persuasiveness and profundity. They rated the work with the name of John McKay much higher than that of Joan. It is a sign of social progress that such prejudice would be less likely today.

The current British judiciary is not yet a fair reflection of the society it judges. Of the 639 Circuit Judges, only 73 are female, and of 108 High Curt judges only one is from an ethnic minority. The composition of the judiciary will change slowly, because judges’ educational background lags about 30 years earlier than their appointment to the Bench. So, changes in access to legal education today will become manifest on the Bench about 2037.

In many ways prejudice is good because it helps us in everyday life and in survival. If someone strides towards you at night holding a knife, you are likely to flee with the sensible prejudice that the approach is not a proposed cutlery sale. But unjustified assumptions about who makes a good judge are on their way out. We have edged away from some old suppositions. In a treatise from about 1290, Andrew Horn, a chamberlain of London, listed as people ineligible to become judges: “women” and others equally ill-suited including “open lepers, idiots, attorneys, [and] lunatics . . . ”

Professor Gary Slapper is Director of the Centre for Law at The Open University

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