By Jalal Uddin Ahmed
The British left the Indian subcontinent in 1947 after 190 years of ruling the region. We got our independence in 1971 from Pakistan. After 46 years, we still follow the dress code and attire of the colonial past in our court rooms today. Even today we see the wigs on the head of our honourable judges of the Supreme Court and long, silken robes, which reflect the colonial past. Have the colonists colonized our minds even though they have left 70 years ago?
The History of the Wig and Robe
The courtroom wigs were officially adopted in Britain in the late seventeenth century as a reflection of the popularity of the wigs as a fashion statement in the larger culture. It all began with King Louis XIV in France — who likely lost his hair to syphilis at age 18 and established the first wigmaker’s guild in Europe in 1655. Charles II of England, Louis’ cousin, also followed suit and wore a wig when his hair turned gray. The wigs were fashionable but also viewed as practical, as they were used to address the infestation of head lice. People would shave their head and wear the wig, where the lice would congregate instead, and the wig would be subsequently boiled to remove the lice and eggs.
Bands are official neckwear accustomed to use by clergy and lawyers. Bands used by clergy often called preaching bands and worn by lawyers are usually called barrister’s bands. Again the history of adoption of bands credited to England where bands were used for legal, official and ecclesiastical and academic use in the mid-seventeenth century. During mid-seventeenth century plain white bands came to be in variable neckwear of all judges, sergeants, barristers, students, clerical and academicians.
Further probing reveals that the history of the black coat dates back to 1327 when Edward III formulated the costumes for judges based on the dress code for attending the Royal court. At the end of the 13th century the structure of the legal profession in Britain was strictly divided between judges; sergeants who wore a white coiffure wig on their heads and practised from St Paul’s Cathedral; and the four Inns of Court, divided into students, pleaders, benchers (the ruling body of the Inn) and barristers, who were mostly hail from royal and wealthy families. The attire of these men kept up with the fashion of those times. Vibrant reds and maroons gowns were fashionable in the 15th century, spruced with golden fabric and warmed with fur. Appearance wise there was a little difference between lawyers and the rest of wealthy society. This changed during the 1600s when the glorious displays were repealed. In 1637, the Privy Council ruled that lawyers need to dress according to their “place” in society. Lawyers therefore were decked in full length gowns or “noble robe” modeled on ecclesiastical sensibilities worn both in court and in general public. It was made from a rough fabric blend of silk, mohair and wool stiffened with gum. Predictably, personal modifications soon followed by those who liked to display their “superior” status. Their robes were fanciful adorned with silk tufts. Those in the higher ranks sported hanging sleeves as an additional adornment.
The robes adopted in 1685 were the symbolic of mourning for King Charles II. While there are theories that the passing of Queen Mary II (1694) or Queen Anne (1714) was the trigger, historian J.H. Baker attributes it to the death of King Charles II (1685). These “mourning robe” were designed to have pleated shoulders and bell-shaped sleeves. Again, the higher ranking lawyers’ robes set them apart with flap collars and different sleeves. Similar such robes are worn today. The wigs also follow the fashion of that era. It was believed that gowns and wigs gave a degree of anonymity to judges and lawyers. Different styles of wig were used depending on the hierarchy. Bands, the official neckwear, also originated in UK, where these were used for legal, official, clerical, priestly and academic use.
Dress Code of Law Professionals in other countries
When the United States became independent from England, Thomas Jefferson and other founders opposed official garments for the judiciary because they saw the wig and robe as symbols of a rejected system. Thus the “aristocracy of the robe was eliminated.” While there are no rules requiring federal and most state judges to wear robes, status clothing has always been part of American society,and judges have often worn them . After the revolution wigs were banned retaining other robes. But by the mid-nineteenth century the USA almost in total quitted the British styled robes fixing no specific dress code for advocates or attorneys and judges. Almost every judge in USA wears a black robe over formal business suit and attorneys are free to choose their own costumes.A recent article highlighted the freedom American trial judges possess to choose their robes. Robes are not required to be worn by New York trial judges, and one criminal judge has changed her wardrobe frequently; she has been seen without a robe in a lime-green suit on the bench, or accenting a partly-buttoned robe with a scarf or necklace. She likes to bring her personality to her courtroom, and other judges agree that their dress freedom is a humanizing factor. Another trial judge wears her robe open like a bathrobe to stay comfortable. Deviating from tradition is not limited to state trial judges. In 1994, Supreme Court Chief Justice Rehnquist added four gold bars to the upper part of his robes’ sleeves after attending a comic opera in which the Lord Chancellor wore similar sleeves. He adopted the gold bars simply because he liked the way it looked. Some female judges, like Supreme Court Justice Ginsburg and former New York Court of Appeals Chief Justice Kaye, wear a lacy jabot around their necks. Chief Justice Kaye felt that the V-cut robes were designed for the male figure, and that the hanging garment made for a less awkward look.
Australia and Africa have changed the imposed dress code in their respective court premises recently (Australia even opted for judicial activism). In Greece and Scandinavia, for example, a suit is fine to wear during any legal proceeding. Most of the Muslim countries in the Middle East tend to follow anti-western dress code for lawyers. Judges in these countries wear very simplistic costumes denouncing fancy court room dress as western practice. In Afghanistan and in Iran chief justice wear white and black turbans apart from traditional robes. Judges in Libya and Egypt simply wear green sashes over the business suits terming green as the color of justice in Islam.
Situation in the Indian Subcontinent
The origin of legal profession in the Indian subcontinent is traceable to the English legal system and the English legal profession because Indian subcontinent was colonized by the British for about one hundred ninety years. English ideas of judicial attire and addressing of judges in the courts entirely accepted in the court premises of this subcontinent considering Britain as the mother of the judicial attire and address.
During the British colonial rule, India followed the British style robes.In India, rules under section 49(1) (gg) of the Advocates Act, 1961 advocates appearing in the supreme court, High courts, subordinate courts, Tribunals or Authorities shall have to wear a specific robes or dress code namely a vest, a white shirt, a black coat, a black gown and a white band with a slightly dressed down version for female lawyers. Instead of white band a black is used in the subordinate judiciary. Section 49 of the Advocates Act, 1961 provides that the dress code should be prescribed in keeping with the climatic conditions.Interestingly the Bar council in India at the end of 2001 relaxed wearing of black coat by advocates during summer (March 15 to June 15) for the subordinate judiciary except the Supreme court and High courts.In Pakistan, also upholding the British tradition, advocates and judges wear black and white in the courts. In 1980s, judges modified their dress code to do away with wig and to allow the usage of a black traditional Pakistani sherwani.
In consonance of the British and keeping consistency with India and Pakistan, the judges and advocates in Bangladesh follow almost same attires in the court premises.The Supreme Court of Bangladesh provided rules and orders containing dress code for judges and advocates. Although there is no mention in the Bangladesh Legal Practitioners and Bar Council Order, 1972 regarding the dress code of lawyers, the provisions for their professional conduct and etiquette are well mentioned, which implicates following of the custom. Appellate Division Rules of 1988 of Bangladesh Supreme Court talks about senior and junior advocates and advocate on records. Nothing has been changed in Bangladesh concerning dress code for lawyers and advocates and any demand of change is yet to be voiced by the judges or advocates or even any quarter.
Criticism of the Dress Code
Regarding the necessity of the robe and wig, Chairman of the Kenyan Human Rights Commission who also is a SUNY Distinguished Professor at SUNY Buffalo Law School ,”Now, the wig. Every time I see a wig on a Kenyan judge or lawyer, I think of an American Halloween costume. The wig, coupled with the scarecrow rob, looks satanic and cult-like. It’s a comical attempt to mimic the papal or priestly dress. Me thinks it’s meant to give the judge a “divine” or “godly” aura. The idea is to scare the living daylights out of the peasants and workers – the majority of litigants who appear before Kenyan courts. Add a raised dais where the judges sit – looking down on, and dominating, litigants – and you wonder what justice has got to do with it. Even Britain got rid of the wig. In America, judges wear a simple black rob.”
In a book chapter titled “The Cult of the Robe,” Judge Frank highlighted the robes’ negative consequences and arguments against wearing them:
- Robes hide their wearer, and can affect a false dignity and nourish pomposity, while shielding judges from rational inquiry.
- Robes convey uniformity in the law in a way that he does not believe exists; if laws were uniform, he argues, judges would not write dissenting opinions.
- Robes have adverse effects on justice, by intimidating unaccustomed citizens and inexperienced lawyers.
He concluded that the robe was an outdated remnant of ceremonial government and should be discarded, thereby humanizing judges.
The negative consequences of wearing formal attire seems to be more prominent today. It is important to remember that when judges initially wore formal attire like robes and wigs, other professions wore them as well. However, those fashions faded centuries ago. Today, when those who have never before walked into court make their first appearance, it is likely that the formally outfitted judge – perhaps wearing a wig and robe – is the only robed person they have ever seen. As the English documented when studying this issue recently people can, indeed, be intimidated by such formal attire. Instilling fear in a court participant – whether in criminal defendants, witnesses, or younger or inexperienced lawyers – undermines the very purpose of judicial systems: to administer justice.
Lord Chief Justice Taylor of England opined that their judges’ formal attire made them look “antique and slightly ridiculous” – in 1990. Judge Frank felt the American black robe – much simpler than the English costume – nourished pomposity and was outdated and out of touch in 1950.
That was over sixty years ago, and societies and laws have advanced rapidly since then. Leaving legal systems vulnerable to mockery for appearing antiquated seems unnecessary, as the world around the courts has advanced so much
Regarding judicial attire and access to justice, Dr. Willy Muntunga says, “While I have not found materials that squarely address whether there is, in fact, a relationship between judicial attire and access to justice, my research leads me to believe that overly formal attire has an inverse relationship with access to justice. From the early days of secular courts, authorities were concerned not with providing access to justice for the benefit of their citizens, but with reinforcing support for their own power. Robes and other formalwear were borrowed from clergymen to create the perception of a dignified reign, or from nobles to display their reign’s wealth and power.”
The intentions of states enhancing judicial formality have often appeared manipulative rather than benevolent, and the consequences for citizens are more often negative. Simply put, formal attire that lingers from different countries, centuries, and global structures does not symbolize access to justice for the public.
The wind of change is blowing all across the globe regarding the dress code of lawyers and judges. The dress code of lawyers and judges in many countries has been adjusted with the seasonal weather conditions and also to get rid of the British colonial legacy. But the dress code of judges and lawyers in Bangladesh introduced by the British a long ago is still in force. While the colonization of a people involves land theft, plunder and the exploitation of people and their natural resources, a colonization of the mind also takes place. In this case, a most conspicuous symbol of that process sits on top of one’s head. The calls for the Bangladeshi judiciary to adopt new systems, styles, processes and symbols that reflect the needs and culture of their people will and should continue.
- 50 Years After Colonial Rule, African Judges Still Wear Symbol of Oppression On Their Heads; David Lowe, atlantablackstar.com
- History of Costume for Lawyers : Magnificence vs Ridicule; Emdadul Haque, banglanews24.com
- The Mystery of the Black Coat; Shalu Nigam, countercurrents.org
- To Robe or Not to Robe? A Judicial Dilemma; Glenn W. Ferguson
- Supra note 2
- Behind The Gavel A Sense of Style; John Elingon, The New York Times
- Another judge comments that showing personality on the bench is important because it allows criminal defendants “to see her ‘as another human being, not just a rubber-stamp automation.’” Ibid
- Dressing and addressing the Kenyan judiciary: reflecting on the history and politics of judicial attire and address; Dr. Willy Muntunga, Buffalo Human Rights Law Review
- Supra note 5
- Judges and lawyers donning wigs, robes are out of place; MakauMutua, standardmedia.co.ke
- Courts on trial: myth and reality in american justice; Jerome Frank
- Judicial Drag: An Essay on Wigs, Robes and Legal Change; Charles Yablon
- Supra note 9
- A history of legal dress from Saxon period
- Supra note 15