There is an old English expression, “old habits die hard”, which refers to the fact that it is often very difficult to change traditional customs and practices. This has certainly been the case in relation to the court dress that judges and lawyers wear in common law jurisdictions. This column explores the practices concerning court dress in common law jurisdictions and also in mainland China.
History of wigs and robes in common law jurisdictions
The practice of wearing wigs and robes in England dates back to the 17th century, when the wearing of wigs by wealthy people in society became fashionable, during the reign of King Charles II. The fashion originated in France during the reign of King Louis XIV, who is said to have worn wigs in order to hide his baldness. The English word “wig” is a short form of the word “periwig” (which derives from the French word “perruque”) and appears in the English word “bigwig”, which is used informally to refer to an important person.
The importance of using dress to distinguish judges and lawyers from other members of society was recognised in England as early as 1635, when a royal decree was passed regulating the dress worn by judges and requiring them to wear black robes on normal occasions, and red robes for special ceremonial events and criminal cases.
Barristers soon “followed suit” by adopting the practice of wearing wigs and black robes in court. Even within the profession of barristers, different dress is worn depending on their seniority. Senior barristers who have been appointed Queen’s Counsel wear a silk robe, which is why such barristers are said to have “taken silk”, and are often referred to informally as silks.
The current practice in common law jurisdictions
The practice of wearing wigs by wealthy people in society fell out of fashion in the 18th century. However, judges and lawyers continued to wear wigs in court. That practice has survived until today, although courts in some common law jurisdictions have decided to dispense with the wearing of wigs and there is an ongoing debate about whether they should be retained in other common law jurisdictions.
In England, the rules governing the wearing of wigs and robes by judges and lawyers have traditionally been very complex, and have imposed requirements that differ from court to court, and also from season to season. In 2007, the Lord Chief Justice of England and Wales (who is the head of the judiciary of England and Wales) decided that judges would no longer wear wigs in civil cases, but would continue to wear wigs in criminal cases. In 2008, following a survey of the profession, the Bar Council (the body that regulates barristers) decided that barristers should continue to wear their existing wigs and robes in both civil and criminal cases.
Interestingly, the justices on the highest court in the UK – the Supreme Court of the United Kingdom (previously the Judicial Committee of the House of Lords) – have never worn wigs or robes for court appearances and only wear robes for ceremonial occasions.
In Australia, different practices are adopted by courts in different states and territories. In some jurisdictions, such as Western Australia, wigs have been abolished in both civil and criminal cases. In Victoria, by contrast, wigs have been abolished in civil cases but not in criminal cases. The decision of the Chief Justice of Victoria in 2016 to dispense with wigs in the common law division of the Supreme Court of Victoria proved controversial, as it was not initially clear whether the decision just applied to judges or whether it applied to both judges and barristers. After a Supreme Court judge reprimanded five barristers who appeared before him in a civil case wearing wigs, the court issued a notice confirming that the decision applied also to barristers.
In other common law jurisdictions in the Indo-Pacific region, such as Sri Lanka, Malaysia and the Hong Kong Special Administrative Region, judges and barristers follow the English traditions. Wigs, however, have been discarded by judges in Malaysia and India.
By contrast, the US departed from the English traditions in the middle of the 19th century. The rules differ from jurisdiction to jurisdiction. Today, most judges wear a plain black robe, including the justices who sit on the Supreme Court. In most cases, lawyers wear normal business dress.
Arguments for and against court dress
There are several reasons why judges and barristers have traditionally worn special court dress. As noted above, one of the reasons is to distinguish judges and lawyers from other members of society. Although this might be
perceived as elitist, it has been argued that court dress invokes a sense of authority and dignity in court proceedings, and therefore increases the likelihood that litigants will respect the process and the decision. In particular, black is a popular choice for robes worn by judges and lawyers around the world, as it is associated with solemnity and trust.
In relation to wigs, some argue that they confer a degree of anonymity and make it less likely that judges and lawyers will be identified by parties outside the courtroom. This is one of the reasons why wigs have traditionally been worn – and are still worn – by judges and lawyers in criminal proceedings.
A further reason why some people argue in favour of wigs is that they are a traditional symbol of the legal profession and confer a sense of collegiality, professionalism and unity among judges and lawyers. In addition, there is a practical benefit in wearing wigs and robes, as judges and lawyers do not need to decide which clothes to wear or how their hair should be done when they appear in court each day.
On the other hand, there are many reasons why people argue against formal court dress, particularly wigs. In a practical sense, wearing wigs can be hot and uncomfortable, although the presiding judge in common law jurisdictions may dispense with court dress if the conditions require, or where it would be inappropriate (e.g., in cases in which children are involved). Perhaps the strongest arguments against wigs are that they are anachronistic, that they have no place in the modern courtroom, and that they make judges and lawyers appear remote and out of touch with ordinary people.
In former British colonies such as Kenya and Uganda, some people have argued against wigs and robes on the basis that they are a symbol of colonial repression and create intimidation and fear on the part of litigants.
Court dress for judges in China was standardized in the early 1980s. At that time, judges wore shoulder straps and large-brimmed hats. In 2000, however, the Supreme People’s Court of China introduced new court attire for judges on a trial basis and this was adopted throughout mainland China in 2001. In place of the army-style attire that judges had previously worn, judges began to wear a black robe with a red trim and gold buttons.
Soon after, in 2002, the All China Lawyers Association issued the Administrative Measures on the Dress for Lawyers When Appearing in Court. Issued “for the purpose of strengthening the administration of the legal profession, standardizing the dress conduct of lawyers when appearing in court, and increasing and strengthening the professionalism of lawyers”, the measures stipulate that lawyers must wear a lawyer’s robe and scarf, the details of which (e.g., design, fabric and colour) are determined by the All China Lawyers Association.
It is interesting to note that the practice of wearing formal dress by judges and lawyers in mainland China has strengthened at the same time as the practice has weakened in many common law jurisdictions. As with many issues, perhaps, the most important question is how to strike an appropriate balance.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.