“Writers of the nineteenth and twentieth centuries had already come to the unremarkable conclusion that judges were human beings, and as such were subject to human prejudices”
— Charles Gardner Geyh
THE PRINCIPLE OF JUDICIAL IMPARTIALITY is a foundational pillar of any legitimate legal system. However, it is widely accepted that the pursuit of “absolute impartiality” is a chimera, an ideal that is perpetually sought but never fully attained.
As discussed in a previous article in this series – ‘Role of a Judge: When to recuse?’ – the most recognised threats to impartiality are bias and prejudice; both of which can subvert the adjudicative process. Partiality manifests in overt forms, such as political or financial interests, or in more subtle forms, such as cognitive bias or judicial nonchalance.
Alongside the above-listed influences, the very philosophical commitments of a judge—their school of jurisprudential thought—can structurally shape their reasoning in ways that lead to divergent, often partial, outcomes. In analysing another hurdle to impartial adjudication, this blog post examines the inherent tensions within legal theory.
The umpires tale
There is an old tale about three baseball umpires who were asked how they rule on a ball: the first said, “I call it like I see it”, the second, “I call it like it is”, and the third, “It ain’t nothin’ till I call it.”
This anecdote serves as a useful heuristic for examining the practical application of competing jurisprudential theories, emphasising the difference yet correctness of each view. The umpire, analogous to the judge, is expected to function as an independent and impartial third party. However, as the umpires’ divergent statements illustrate, the very nature of what constitutes an impartial and correct ruling is itself subject to his* own philosophies and predilections (albeit at times subconsciously so).
The three views espoused above represent the diverging approach of legal theorists who ascribe to the schools of natural law, legal positivism, and legal realism.
The natural law umpire: I call it like I see it
“Natural law is in the heart, the written law on tables; all men are under the natural law”
— St. Ambrose
The first umpire subscribes to theories of natural law that are primarily founded on the Lockean belief that rights are “inalienable and universal” and derive from “natural law” and “need no other justification.” This approach was later expanded by Kant to include ethics as inextricably intertwined with such natural law. Importantly, natural law is seen as a higher law that should guide the standard for making, developing, and interpreting man-made laws. The belief is that “duties [are] imposed by God on every human in society” and that “society’s duties are to be seen as natural rights for the individual.” It is in consenting to enter into society that we assign our rights to the government and that delegation thereby limits their authority to exercise unfettered control over such rights.
In the event that man-made laws violate these naturally ordained rights, natural law should prevail. In this view, the adjudicator’s role is not merely to apply rules mechanically but to try and subjectively ensure a just outcome, even if it requires looking beyond the letter of the law. There is an obvious partiality in this approach as it interweaves ethics into law; any judge that prescribes to this view will integrate a moral dimension into his considerations and that will manifest in his decision.
This introduces a significant tension with the ideal of impartiality, as the application of a higher moral code is necessarily filtered through the judge’s personal understanding of that higher code, making their moral convictions a central, and potentially contestable, element of their legal reasoning. It is unsurprising then that natural law theorists call it as they see it.
A seminal example of the application of natural law are the Nuremberg Trials held between 1945 and 1946. The International Military Tribunal, in rejecting the defence raised by the accused, applied principles of morality and justice premised on the belief that there are universal legal standards beyond national laws.
The main defences raised by the accused included:
(a) the actions were legal under Nazi law;
(b) the concept of crimes against humanity was not codified in international law; and
(c) the acts were direct orders from superiors in command.
These are underpinned by sound legal reasoning and may well have been accepted by a positivist. However, the Tribunal, in working backwards from administering its idea of ‘moral’ justice, rejected these arguments by reinforcing the rule that law must serve justice, not just adhere to precedent.
The Tribunal noted that “the true test… is not the existence of the order, but whether moral choice was in fact possible.” Consequently, in emphasising a moral dimension to legal responsibility, the Tribunal found that blind obedience to unjust orders, albeit those of a superior, is not a valid defence. The Tribunal also introduced the concept of crimes against humanity, opining that certain acts (like genocide and war crimes) are inherently immoral such that despite there being no explicit legal prohibition against them, they are ‘known wrongs’ and thereby punishable. The Trials are a quintessential example of the principles of natural law guiding judicial decision-making.
The positivist: I call it as it is
“The distinction between what is law and what is not law is a social fact”
— John Austin
The second umpire is a legal positivist who endorses the belief that “blackletter law is law” and succumbs to state sovereignty. Put another way, proponents of this view do not appeal to an external sense of justice but to the verifiable reality. These theorists ascribe to a purely objective application of the established rules, treating the law as a closed, logical system distinct from the realm of morality. Although this approach dismisses considerations of ethics and morality in decision-making, the ideal of perfect objectivity remains elusive.
HLA Hart, a prevailing positivist, was cognizant of this inherent prejudice when he noted that “linguistic rules are open to some extent indeterminate in their application, due to the open texture of language, [and] the necessity of exercising judgment” such that “when a judge encounters a gap in the law, where it is clear that there is no correct answer to the legal question, the judge must exercise discretion.”
In effect, judges must exercise discretion, effectively moving from a purely applicative to a quasi-legislative role. Accordingly, judges, despite seeing it like it is, cannot completely divorce from implicit biases, and thereby bring a degree of partiality into their decision-making (however distinct from the biases of a natural law theorist). Consequently, the positivist judge, despite a commitment to calling things “as it is,” is forced to engage in an act of interpretation that is not entirely determined by the rules, thereby conceding a degree of the very subjectivity they seek to avoid.
The infamous case of R v Dudley and Stephens (1884) is a classic example of legal positivism wherein the Court strictly adhered to black-letter law by explicitly dismissing considerations of morality or higher justice. Following a boat-wreck, four sailors were stranded at sea without any food or water. After days of starvation, two sailors decided to kill the cabin boy and feed on him for sustenance. When rescued, the two sailors were charged with murder, notwithstanding their plea of necessity. The Court emphasised that the law must be applied as written, without regard to factual circumstances or moral justifications. This case typifies the positivists principle that law is distinct from morality and must be enforced as enacted.
The realist: It ain’t nothin’ till I call it
“The law (or the Constitution) is what the courts say it is”
— H.L.A. Hart
The third umpire is an exemplar of legal realism as he believes that judges create new law through the process of interpretation. Realism outwardly accepts that “a judge is a man and not a syllogism machine: he judges by his intuition and his sensitivity as much as he does by his knowledge of [legal] rules and by his logic.”
This view accepts the significant level of judicial latitude vested in the judiciary and reverberates the sentiments of Justice Oliver W. Holmes that “the life of the law has not been logic: it has been experience.” Consequently, the judicial decision is not always a discovery of a pre-existing legal fact but the creation of one, an exercise of power that has a direct and formative impact on the interpretation of law and future precedent.
This is unique in that it allows for a formal departure from precedent, undermining the age-old principle of stare decisis. It is unsurprising then that this is most prevalent in the US judiciary whereas common law jurisdictions struggle given their excessive reliance on horizontal precedents. Realism propounds partiality to a greater degree where judges exercise excessive leeway in their decision-making and thereby have a significant influence on the evolution of precedent. The famous dictum of Chief Justice Hughes — “we are under the Constitution, but the Constitution is what the judges say it is”, echoes the statement that “it ain’t nothin’ till they call it”.
The landmark US case Brown v. Board of Education (1954) is an ideal example of legal realism as the Court, in striking down the ‘separate but equal’ doctrine, departed from precedent set out in Plessy v. Ferguson (1896) to create new law. The Equal Protection Clause found in the 14th Amendment to the US Constitution had existed since 1868.
In Plessy (1896) the doctrine of separate but equal was seen as constitutional. However, in Brown (1954) the same principle was seen as a violation of the Equal Protection Clause as “separate but equal was inherently unequal.”
This evolution in the Court’s interpretation is reflective of social realities, psychological considerations and liberalisation, which compels judges to not only apply the law, but, at times, to make it. Whilst a positivist may find segregation, insofar as it is equal, as legal, the realist, taking into account non-legal aspects, found segregation in itself as inherently unequal.
Susceptibility of philosophies to bias
“a judge must not alter the material of which it is woven, but he can and should iron out the creases.”
— Lord Denning**
Legal positivism is considered the most insulated from bias as it compels judges to strictly apply written laws. The preclusion of subjective morality in their decision-making mainly narrows discretion to mainly the ‘open texture of language.’ Natural law, however, is moderately susceptible to bias as it requires judges to interpret the law through the lens of a ‘higher moral code.’ This process is inevitably filtered through a judge’s individual morals and his personal sense of justice, lending to more subjectivity. Legal realism is the most vulnerable to bias, as it openly acknowledges that judicial decisions are heavily influenced by the judge’s personal experiences, politics, and other externalities. It accepts the judge’s perspective as an inescapable part of the law itself – one that allows judges to create the law.
The jurisprudential analogy above reveals that the philosophical lens through which a judge views the world is not separate from his role but fundamental to his interpretation of justice. The choice between a ruling grounded in a higher moral law, the application of established rules, or the pragmatic creation of an outcome is complicated by the inescapable realities of linguistic indeterminacy, ethical considerations, and the exercise of discretionary power. Resultantly, the susceptibility of a judge to bias is inextricable from the jurisprudential philosophy he subscribes to.
Conclusion
Judicial decision-making is shaped by the particular jurisprudential philosophy of a judge and each framework embodies an inherent partiality. It is then plain that the ideal of a perfectly impartial arbiter is an illusion.
Whether one adheres to the rule-bound approach of positivism, the moral reasoning of natural law, or the candid subjectivity of legal realism, decisions are rarely, if ever, wholly impartial. Consequently, there is an undeniable tension between the notion of impartiality and the observation that the outcome of a case is not determined by the facts and the law alone.
Judicial rulings are also invariably influenced by the philosophical lens of the person on the bench. Judges must therefore take steps to ensure their particular partialities do not undermine the legitimacy of the judiciary.
Notes:
*The use of “his” is for ease of reading and should be read as gender neutral in this context.
**As noted in Seaford Court Estates Ltd v. Asher (1949).