Demographic diversity while vital for institutional legitimacy, reveals inherent limitations upon closer examination. Although championed by Waldron, the legitimacy thesis posits that law’s authority derives from “the co-ordination of social action through public institutions” [1]. Meaning that a homogenous judiciary inevitably risks being perceived as an “unaccountable elite resulting in eroding trust among marginalised communities [2]. Simultaneously, the ‘different voice’ thesis suggests that individuals from underrepresented backgrounds can bring distinct perspectives to the bench. However, this is a double-edged sword. Due to risking the ‘essentialist trap’ as it unfairly burdens judges with the expectation to act as monolithic representatives of their identity group [3]. Additionally, without deeper structure and cultural change, tokenistic inclusion can lead to the “co-option” of diverse judges, absorbing them into a pre-existing, conservative judicial culture that neutralises their transformative potential rather than being transformed by them. This hierarchy assimilates the individual without altering its own epistemic foundations.
In consequence, cognitive diversity is the primary disruptive force in human rights adjudication. This means moving beyond identity politics to actively value the appointment of judges from diverse backgrounds. For instance, legal academics, human rights practitioners, and public defenders. The primary value of these judges lies in their ability to challenge the established methods of judicial reasoning itself. This is supported by “how judges reason towards their decisions in an important and neglected topic” [4]. The distinction here is not about differing verdicts but about applying different frameworks to understand the law. For instance, in State v Makwanyane [5] Justice Albie Sachs of the South African Constitutional Court had experience as an anti-apartheid activist meaning his application of ubuntu philosophy introduced a restorative perspective to the death penalty debate. This directly challenged the individualistic and punitive assumptions that had long shaped common law reasoning on the right to life.
The transformative impact of this different kind of thinking becomes clear when comparing landmark cases from different states. In the UK’s A v Secretary of State for the Home Department [6], the Law Lords used a traditional legal proportionality test to find the government’s policy discriminatory. Although, effective their reasoning stayed within conventional boundaries. In comparison, Canada’s Supreme Court in Canada v Bedford [7] creates a new reality-based test. It assessed the prostitution laws by examining their “arbitrariness”, “gross disproportionality,” and “overbreadth.” This forced the court to consider the law’s “brute, concrete impact” on sex workers’ safety [8]. This was a leap in reasoning achieved by engaging with real-world consequences and alternative scholarship, not just a different demographic identity.
For cognitive diversity to have a lasting impact, judicial institutions must be reformed to support it. This requires a fundamental change in appointments to value non-traditional career paths by redefining ‘merit’. Secondly, the judicial culture must encourage dissenting opinions, viewing them not as a failure to agree but as an essential resource. Making them a “repository of alternative legal knowledge” for the future [9]. A powerful dissent, for example Lord Reed’s in Evans [10] on constitutional principles, can plant the seed for a future legal revolution. This internal “marketplace of ideas” is the best defence against outdated or narrow interpretations of our fundamental rights [11].
In conclusion, the future of human rights depends on shifting the goal from a judiciary that merely looks like society to one that thinks like it. The real benefit is not that diverse bench will always side with the rights-claimant, but that it will make the process of judgment more rigorous, self-aware and open to different ways of thinking. Ultimately, the robustness of human rights protection hinges less on the demographics of the judges and more on the diversity of thought they bring to the bench and their freedom to express it.
References
[1] Waldron J, Law and Disagreement (Oxford University Press 1999)
[2] Peter Leyland, The Constitution of the United Kingdom: A Contextual Analysis (4th edn, Hart Publishing 2021).
[3] Butler J, 'Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory' (1988) 40 Theatre Journal 519
[4] Dickson J, 'Interpretation and Coherence in Legal Reasoning' in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2022)
[5] State v Makwanyane 1995 (3) SA 391 (CC)
[6] A v Secretary of State for the Home Department [2004] UKHL 56
[7] Canada (Attorney General) v Bedford 2013 SCC 72, [2013] 3 SCR 1101
[8] Choudhry S, 'So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1' (2006) 34 Supreme Court Law Review 501
[9] Valcke C, 'The French Rapporteur and the English Dissent' (2012) 32 Oxford Journal of Legal Studies 259
[10] R (Evans) v Attorney General [2015] UKSC 21, [2015] AC 1
[11] Schauer F, 'Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior' (2000) 68 University of Cincinnati Law Review 615
Bibliography
Cases
A v Secretary of State for the Home Department [2004] UKHL 56
Canada (Attorney General) v Bedford 2013 SCC 72, [2013] 3 SCR 1101
R (Evans) v Attorney General [2015] UKSC 21, [2015] AC 1787
State v Makwanyane 1995 (3) SA 391 (CC)
Books
Gilligan C, In a Different Voice: Psychological Theory and Women's Development (Harvard University Press 1982)
Leyland P, The Constitution of the United Kingdom: A Contextual Analysis (4th edn, Hart Publishing 2021).
Waldron J, Law and Disagreement (Oxford University Press 1999)
Journal Articles
Butler J, 'Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory' (1988) 40 Theatre Journal 519
Choudhry S, 'So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1' (2006) 34 Supreme Court Law Review 501
Devlin R, 'Mapping Legal Theory' (1994) 32 Alberta Law Review 602
Dickson J, 'Interpretation and Coherence in Legal Reasoning' in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2022)
Schauer F, 'Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior' (2000) 68 University of Cincinnati Law Review 615
Valcke C, 'The French Rapporteur and the English Dissent' (2012) 32 Oxford Journal of Legal Studies 259