Law in Contemporary Society

Legal Decision-Making

The Role of Legal Principles

Many classes in law school (although not all) rest at least partially on the idea that judges decide law based on legal principles that can be known and relied upon. Thus, students learn by studying case law, determining how cases have gone in the past as a way of predicting how cases will go in the future. Inherent in this assumption is the idea that there are set legal concepts which pass unchanged over time; we simply need to determine what these concepts are and then apply them to new cases. This conception of legal decision-making is especially attractive because it promises certainty and reliability in the law.

Legal Principles Are Not Rigidly Fixed.

However, the idea that law is an unchanging monolith that judges strive to discover and apply is a seriously flawed concept. One does not need to look far to find important legal concepts that have either changed significantly over time, or that are themselves recent innovations. English law did not recognize a right to appeal until 1927; felony defendants were not allowed counsel until the end of the 19th century; US law found that segregation was not incompatible with equality until 1954. Our understanding of legal principles is constantly changing, and it seems unlikely that ideas that we now take as axiomatic were simply "undiscovered" for hundreds of years.

The Role of Personal Preferences

Another potential source of legal decisions is the personal preferences of judges. Instead of relying on legal principles to guide their decisions, judges would make decisions based on their whims and fancies; some people have described this as deciding "based on what they had for breakfast this morning". Judges would look at a case and then decide based on whatever they themselves thought should happen. This approach paints the law as an almost arbitrary force, making decisions based on the whims of a few people. Yet, in a sense, this view is unassailable. Insofar as the judges have the power to make decisions, they are going to be subject to personal prejudices. The issue then becomes to what degree judges resist the temptation to make decisions based on their personal feelings toward a given case, as opposed to relying on other factors such as the hypothetical static legal principles mentioned above.

Judges' Personal Preferences Are Informed By Legal Principles

Even if we assume that most judges let their decisions be steered fully by their personal preferences, we should consider where the personal preferences come from. The subconscious processes in a judge's mind may include a wide variety of life experiences, but one common experience to all judges is law school (additionally, judges may be more apt to rely on their law school experience when making decisions regarding the law). The principles taught in law schools, therefore, at least play a role in affecting judge's decisions. Furthermore, if the legal principles are related to social mores, then the principles would have an even greater role in determining how a judge will make his or her decision, even if we assume that they are using personal preferences. It should be noted that it does not matter much whether the principles create social mores or vice versa, but simply whether or not the legal principles are similar to the prevailing social mores.

Finding A Happy Medium

The either-or dichotomy of rigid legal principles versus whimsical and arbitrary personal preferences appears to be insufficient for accurately describing the processes behind legal decision-making. Instead, a better option may be to combine parts of each idea. Yes, judges are informed by their personal preferences; however, as mentioned in the previous section, these preferences are to a large degree shaped by legal principles that, although not constant over time, are nonetheless somewhat uniform in a given time period. These legal principles may be the product of culture and therefore subject to changing social mores, but it is notable that because they are often perceived to be absolute, they are taught and handled in a way that encourages judges to apply them as if they are absolute.

Certainly not all judges handle the law this way, but it is no stretch of the imagination to assume that a good number of judges would have sufficiently absorbed the lessons of law school to believe that there are rigid legal principles. For these judges, the conscious adherence to supposedly rigid principle might be able to overcome subconscious preferences, or the principles might even themselves become the most powerful subconscious desires. The end result is that judges end up subverting their personal preferences to the idea of rigid legal principles, even though such principles exist only in the judges' minds. Furthermore, these legal principles, while certainly not static, nonetheless provide a fairly reliable basis for predicting the outcome of cases in the short term.


Webs Webs

r6 - 22 Jan 2013 - 20:10:36 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM