Vol. 28 No. 2 (April 2018) pp. 16-18COMMON LAW JUDGING: SUBJECTIVITY, IMPARTIALITY, AND THE MAKING OF THE LAW, by Douglas E. Edlin. Ann Arbor, MI: University of Michigan Press, 2016, 262pp. Hardcover $75.00. ISBN 978-0-472-13002-3.
Reviewed by Michael A. Dichio, Department of Political Science & Philosophy, Fort Lewis College. Email: madichio@fortlewis.edu.
Early on in my American Supreme Court class, I assign my students a response paper based on their viewing of a C-SPAN interview with a Supreme Court justice. Each paper—regardless of the justice my students select—describes virtually the same refrain: “As a justice, I am neutral and objective; the Court only applies and interprets the law.” This trope has long frustrated me because scholars and practitioner alike know it is false, but nevertheless it persists. Douglas Edlin’s COMMON LAW JUDGING: SUBJECTIVITY, IMPARTIALITY, AND THE MAKING OF LAW strikes at the heart of this falsity in a thought-provoking and creative way. Integrating Kantian aesthetic theory, case law in the United States and United Kingdom, and legal theory, Edlin argues that not only is the neutral, objective “ideal judge” non-existent; he asserts that judges incorporating their personal beliefs when judging is a good thing. Edlin calls on scholars, citizens and politicians to “move beyond thinking of the ideal judge as someone who suspends her own personal experiences and values and perspectives so that she can judge from a place of abstract neutrality and objectivity” (p. 110).
Edlin maintains at the very beginning of the book that society has understood and evaluated judges incorrectly; they do not dispassionately apply and interpret law. The overall aim of his book proposes an alternative to the “objective law or subjective preference trope” (p. 4). To move us beyond these tropes, Edlin begins by clarifying subjectivity and objectivity. Although the former has long been considered a vice while the latter a virtue in judging, he notes that these concepts should not be seen in “oppositional terms” (p. 25). He operates from the premise that common law judicial process is “irreducibly and inescapably subjective,” and, thus, his chief purpose “is to explain that subjectivity in judging, properly understood, does not threaten the objectivity of law, properly understood” (pp. 4-5). The heart of the book develops a framework based on Kantian aesthetic theory to capture the nature of common law judging accurately. Edlin’s conceptual framework allows us to merge individual subjectivity with the objectivity of well-defined forms of legal argument and sources that judges then communicate to a broader audience who subsequently “evaluates and validates” the judge’s opinion (p. 113). By using Kantian aesthetic judgement to understand common law judging, Edlin maintains that we can avoid “the misguided and widespread view that the subjective element of judging somehow compromises the integrity of the process or the decision” (p. 17). This Kantian framework also makes room for “a dynamic process of evaluating judgements in a community” (p. 28). Edlin seeks to move us away from evaluating judgments as either subjective (“commonly known today as legal realism”) or strongly objective (that judges discover “the true meaning of law”) (p. 111). For Edlin, this long-held dichotomy falls short of reality. Since “law and the judicial process are human creations” (p. 112), judges do not engage in strongly objective or subjective behavior but rather practice “mediated objectivism” where the meaning of a law “is determined through a process of considered judgement by a community that has particular training or expertise in formulating and evaluating judgments of this type” (p. 10). Thus, Edlin proposes a framework based in the reality of common law judging.
To advance this argument, Edlin examines four aspects of judging: individuality, impartiality, independence, and intersubjectivity, which subsequent chapters distinguish from objectivity [*17] (p. 7). In Chapter 2, Edlin argues that focusing on objectivity has impeded our evaluation and understanding of the judicial process. For Edlin, objectivity has been understood too narrowly; he urges us to distinguish among objectivity in the recognized sources of law, accepted forms of legal reasoning, and the communication of these judgments to a community. He first differentiates impartiality and objectivity, commenting on how constitutional theorists have mistakenly viewed impartiality and objectivity as synonymous (p. 22). For Edlin objectivity means “the absence of any personal values or views that could influence” the judge, while impartiality is “the absence of any personal stake or bias” that could prevent a judge from treating the parties in a case fairly (p. 22). Since common law has historically required impartiality but never objectivity, a judge’s personal experience will often “influence the understanding each of those judges has of the law” (p. 45). Thus, Edlin pushes us to understand judgements “in terms of validity or persuasiveness, rather than objectivity or truth” (p. 47). Because the community still has to interpret the decision, the full meaning and value of a judgment is unknown at the time the judgment is written. In sum, Edlin proposes intersubjectivity as an alternative to objectivity when evaluating judicial decisions because it offers a more accurate portrait of how common law judges operate (p. 21). Chapter 2 demonstrates that an accurate framework of judicial decision making should understand that “the subjective values of judges can figure into the formulation of objective (universalizable) legal rules through an objective (functionally effective) judicial process” (p. 37).
Chapters 3 and 4 develop a conceptual framework of judging that embraces the subjective value of individual judges, the proper sources and techniques upon which these values and decisions are made, and the way in which these judges then craft and communicate their decisions to a community. To do this, Edlin employs Kantian aesthetic theory, drawing parallels between common law judging and art. The third chapter offers an accessible and thought-provoking account of Kantian aesthetics and its similarities to common law judging. In both the aesthetic and legal realms, judges “combine their subjective response with a reflective judgement” that is “valid by virtue of the form of its reasoning and expression according to the methods and sources of the community in which and to which the judgement is rendered” (p. 76). The combination of the subjective view and an expression to a community represents what Edlin and Kant call “intersubjective validity.” Edlin argues that aesthetic and legal judgements begin with individual subjective response “with reasoned deliberative assessments that are ultimately tested by their persuasiveness in capturing a shared communal response” (p. 62). “The validity of a judicial decision,” Edlin writes in Chapter 3, “depends on its persuasiveness to other judges” (p. 68).
Chapter 4 provides examples of the Kantian framework in practice. It centers on the importance of the individual judge’s subjective view through analyzing three judicial decisions, two from the U.S. and one from the UK. In all three cases, “the judges’ individual sense of justice” helped create new legal standards in property, tort, and criminal law (p. 89). Chapter 4 also makes brief references to the communities’ receptions in the two U.S. cases, but Edlin focuses less on defining the community’s reception in the UK case. It is still not clear how the community is defined in each instance—whether it be the public, legislative bodies, or subsequent judges—or how to measure the persuasiveness of new legal standards promulgated in each of these decisions.
Edlin’s attention remains on the individual judge throughout Chapter 5. Here he notes that scholars have long focused on judicial independence institutionally, but we should also consider judicial independence individually. Edlin examines legislation seeking to alter and impede the judicial decision making autonomy. Here Edlin considers two types of encroachment on individual judicial independence: legislation that attempts to prohibit judges from considering certain sources and evidence (as seen in the Sentencing Reform Act of 1984), and legislative [*18] attempts in the UK that require judges to consider evidence they might want to exclude at trial (evidence obtained through torture). Chapter 5 details the relationship between individual independence and institutional independence, concluding that institutional independence “is virtually meaningless” if judges cannot “determine for themselves what the proper legal outcome of the trial process should be” (p. 98). As elsewhere in the book, Edlin puts a lot of faith in judges to “ensure that the judicial process operates as it was meant to,” and his analysis of sentencing reform and prohibiting evidence based on torture demonstrate judges ably defend judicial institutions (p. 109). But, to use Edlin’s terminology, when judges produce “invalid” decisions, when would legislative attempts to correct these decisions be warranted? In other words, how can we draw the line between appropriate legislative actions to improve judicial institutions and legislative infringements on institutional and individual judicial independence?
Edlin’s book calls on us, as citizens and scholars, to rethink how we evaluate judicial decisions by recognizing the intersubjective element—the dynamic process—inherently present in all judgements. Accordingly, I wanted to hear how we could know if a judicial decision meets these Kantian intersubjectivity standards. I wondered how and when we would know when the community has validated the decision. More than that, how should we define the community or audience when trying to ascertain whether that community considers a judgement valid? Indeed, he notes that sometimes the community might be small (just the parties to the case) or other times it might be large (the entire nation as with canonical Supreme Court decisions) (p. 69). Along these same lines, much of Edlin’s analysis argues that the intersubjective community helps determine valid judgements, and he suggests in Chapter 4 that valid judgements would be ones followed by subsequent courts, judges, and states. But previous scholarship has demonstrated that whether a judicial decision is followed and implemented depends not only on its validity and persuasiveness but also on other external forces like public opinion and the will of administrators and lower courts (Rosenberg 1991; Hall 2012). Perhaps a legal ruling’s validity and persuasiveness is the causal mechanism that persuades these external forces to implement a ruling, but without discussing how to measure a community’s reception of a judgement, we cannot be sure. I certainly do not think this detracts from Edlin’s book; his focus is largely conceptual, and my comments could simply build on his framework, testing and applying it to common law decisions across a variety of contexts.
Given some of its technical language, COMMON LAW JUDGING is most suitable for graduate students and scholars working in the fields of judicial decision making and constitutional theory. At 96 pages, Edlin’s endnotes are nearly as long as the text itself, which is 125 pages. His notes are primarily substantive, commenting on work across multiple disciplines, which make his work especially useful for scholars in these fields. Ultimately, he has provided the law and courts community a much-needed, compelling, and persuasive framework to understand common law judging. His book is sure to provoke rich discussion on how we should evaluate and understand a judge’s role, and how common law systems structure a judge’s behavior.
REFERENCES:
Hall, Matthew E.K. 2011. THE NATURE OF SUPREME COURT POWER. New York: Cambridge University Press.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
© Copyright 2018 by author, Michael A. Dichio.
