The Objectivity of Judicial Decisions

| 9 →

Acknowledgments

This book would not have been possible without the help of Prof Stanislaw Sulowski as the editor of Studies in Politics, Security and Society and Peter Lang’s exceptionally helpful staff. I am very grateful to my publisher for sticking with me throughout this project. The research benefited from the generous sponsorship by the University of Edinburgh Neil MacCormick’s fellowship programme and the USQ Research Division. I have to thank Prof Stephen Tierney for his unparalleled support during the MacCormick’s fellowship and Prof Reid Mortensen and Prof Simon Young at the USQ. A special mention has to go to Prof Wagner and the anonymous referees of the International Journal for the Semiotics of Law for their valuable feedback. The author and the publisher are particularly grateful to Springer for the permission to reprint extracts from the article The Grammar of Bias: Judicial Impartiality in European Legal Systems published by the International Journal for the Semiotics of Law in August 2016. The research was completed in 2014. The book reports on a large comparative project which involved a group of very gifted and dedicated researchers, who worked over a long period of time and it has been the proxy for several individual and co-authored publications. The list of the individuals involved, with the countries analysed by this article, includes: Maximiliano Aramburo and Sebastian Alonso Agüero San Juan, Michal Pazdziora, Lucia Berdisova, Pietro Denaro, Rūta Kazanavičiūtė, Lidia Rodak, Maciej Pichlak, Jaqueline Sena, Andrej Kristan and Tilen Štajnpihler, Antal Szerletics. Over the years individuals’ involvements, as part of the transient nature of legal academia, changed. The first data analysis exercise took place at the 2012 IVR World Congress in Frankfurt. From then, some of the contributors’ work has been reviewed and taken over by others. This list is only indicative of the final contributors. The submission complies with COPE guidelines and the Australian Code for the Responsible Conduct of Research. The project’s raw data is available for review via the Australia’s Academic and Research Network (AARNet). The usual disclaimer applies and so all errors and omissions are the sole responsibility of the author.

| 11 →

Introduction and methodology

1. Modest Objectivity in Judicial Reasoning

The ability to deliver objective, unbiased and just judicial decisions grounded on the truthful representation of the facts is considered an essential aspect of modern liberal democracy.¹ It is so because of multifarious overlapping reasons, yet one of the prominent aspects for considering it the kingpin of modern adjudication is functional.² Objectivity is an epistemic requirement of a judicial decision that considers the facts of the case as a truthful representation of past events and that evaluates the range of legal arguments submitted by the parties.³ This book reports on a large study on the cognitive use of the concept of objectivity, as it has been referred to by the courts, in nine legal systems. The coutries considered were; Brazil, Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain, Romania and the UK. The adopted methodology is the one explained by Langacker’s studies on cognitive grammar and it has been tested in other legal studies.⁴ The results of the study confirm Legrand’s idea of pre-judices in legal discourse. ← 11 | 12 → Pre-judices are, according to Legrand, shared cognitive methods that legal practitioners perceive as necessary in a fair and just judicial system.5

The existence of cultural variations in judicial practices is a relatively uncontroversial idea,⁷ yet there is little known about the effects that pre-judices might have on the judicial narrative and, as proxy, judicial decision.⁸

Studies, such as the one by Azuelos-Atias and Skoczeń, confirmed the existence of cognitive variations within a single legal system.⁹ This study, however, is squarely comparative. It is intended to show that a common concept such as objectivity in judicial discourse is constructed by national diverging clusters of significances. The cluster of textual qualifications made by the judicial system is culturally distinctive, rather like human DNA, and it has important pragmatic and theoretical implications.¹⁰ To know the level of cognitive distinctiveness of a legal system is, for instance, essential for the ← 12 | 13 → implementation of large ambitious plans such as a constitution for Europe or for the implementation of policies that fight organised, multinational criminal activities.11 These types of coordinated activities often assume the existence of a shared understanding of general legal concepts. The study shows that, even at the lexical level, all of the legal systems considered in this study are semantically distinctive and that a series of national pre-judices fills general concepts such as objectivity, independence, justice and fairness with their respective functional significance. Acknowledging this range of pre-judices has, it could reasonably be argued, direct implications in terms of the implementation of international treaties, the functioning of multinational organisations such as the European Union and the plausibility of large international harmonisation projects.¹²

The evidence of a range of cognitive activities perceived as objective by a national community of legal practitioners also has effects on the theoretical assumptions of the analytical jurisprudence of, for instance, Hart¹³ and of nihilist analyses that are distinctive of the Critical Legal Studies (CLS) movement.¹⁴ For instance, Hart has defended his idea of narrow discretion in law as part of an analysis on the separation between law and morals. The possibility of judges being able to select a method from a range of available cognitive approaches with which to provide the ‘best’ answer to ← 13 | 14 → a legal dilemma indicates the existence of a level of external indeterminacy in judicial reasoning. In other words, even in an ideal epistemic condition in which a judge has a truthful representation of the facts of the case and has mastered all the legal expertise of Dworkin’s Herculean judge, she might still have the possibility of being able to choose from one among the many different available cognitive methods in order to reach her decision. The chosen epistemic method, it is reasonable to assume, might condition the outcome of the case.15

So, the study shows evidence of a range of perceived ‘right’ cognitive legal methods, yet the indication that there are multiple contextual epistemic methods associated with the idea of judicial objectivity does not provide a tout court argument against the role of positivism in judicial reasoning.¹⁶ It supports, instead, the existence of a modest concept of objectivity.¹⁷ The idea of modest objectivity in legal reasoning has been qualified by Leiter and Coleman. They suggest the existence of three types of epistemic practices in judicial reasoning called strong, modest and weak or minimal.¹⁸ The first group of cognitive activities is normally associated with the scientific method adopted in natural science. DNA and ballistic reports result from hard epistemic practices that seek to provide a verifiable representation of past events such as the cause of death of a victim.¹⁹ The scientific method is the best known of all scientific epistemologies and it is also one of the most contested.²⁰ The polemic associated with the nihilist critique of legal reasoning will be discussed in several parts of this book, but at this stage, I will simply say that the study has found little evidence of the ideological colonisation of judicial reasoning.²¹ ← 14 | 15 →

Weak epistemic practices might instead be associated with the subjective and unconstrained analysis of a literary composition or an art piece.22 Judicial reasoning is a modestly objective cognitive activity that combines factual narratives and an interpretative activity.²³ Again, Coleman and Leiter deliver a clear explanation of the benefits of associating positivism with a modest concept of objectivity.

By recognising the intrinsic limitations of legal reasoning, Coleman and Leiter’s modest objectivity escapes the strong realist critique of, for instance, Rorty.²⁵ Courts could, indeed, choose from among a series of cognitive methods and such a choice might alter the outcome of the case, yet the decision will be considered as objective in a legal positive sense because the process conforms to the accepted orthopraxy.

The sample of cases considered in this study includes instances in which courts evaluated an allegation of bias. In cases in which there is an allegation of objective bias, the decision to transfer a case or to allow an appeal focused almost exclusively on factual narratives. The case might be decided by accepting the result of a report by a financial forensic expert who proved a monetary interest in the case by the judge who had been called to make a decision on the case.²⁶ The shared reference to a scientific method and the consistency of the decisions in cases of allegations of objective judicial bias, which might support the ideal of determinacy in judicial reasoning, is not replicated in allegations of subjective judicial bias.²⁷ In these types of cases, ← 15 | 16 → the study found that each national legal system relies on large clusters of cognitive methods.28 For instance, the House of Lords considered an intersubjective perception of subjective bias in R v Bow Street Metropolitan Stipendiary Magistrate Ex p Pinochet Ugarte (No2) as sufficient to deem Lord Hoffmann’s indirect involvement with Amnesty International as pernicious of the entire decision.²⁹ It is important to note that in R v Bow Street Metropolitan Stipendiary Magistrate Ex p Pinochet Ugarte (No2) there is no evidence that Lord Hoffmann’s contribution to the case was biased, yet the House of Lords, by making reference to the intersubjective criteria of the reasonable person, upheld the appeal. In contrast to the criterion of the perception of the reasonable person, an allegation of subjective bias in Lithuania requires that a personal allegation of bias is coupled with a procedural impropriety.³⁰ The different epistemic methods adopted in the two legal systems that I assume support different judicial outcomes are perceived by the majority of the national community of legal professionals as ‘objective’. They are, in other words, a manifestation of a segment of cognitive methods that each legal community associated with an objective decision.

There is an overlap between Legrand’s idea of pre-judices in European judicial systems and Coleman and Leiter’s idea of modest objectivity in law.³¹ From an internal-to-the-judiciary point of view, the decision of Vilnius Regional Court No. 1A-543-209-2011 and the outcome of R v Bow Street Metropolitan Stipendiary Magistrate Ex p Pinochet Ugarte (No2) are the logical result of a cognitive activity that is perceived as correct by the respective national communities of legal practitioners. A comparative analysis that focuses on external functional expectations based on, for instance, an Italian ethnocentric perspective of the rule against bias, might suggest that both decisions are unacceptable.³² However, a broader comparison, ← 16 | 17 → such as the one discussed in this book, shows that all the judicial systems considered in this book seek to reduce the pernicious effects of bias. The cognitive methods that each legal system implements to mitigate the effect of the subjective relation between the parties and a judge must be within the range of epistemic methods that a community of legal practitioners perceives as appropriate.