Influence of Political and Moral Values of Judge Reasoning

Legal reasoning inevitably involves the application of political and moral values. This paper will attempt to establish the ubiquitous influence of political and moral values on judges’ reasoning during interpretation of statutes and adjudicating in a judicial process.

The first part of the paper will attempt to define what is meant by legal reasoning as defined by various scholars, and the second part will delve into the rules, principles and legal rhetoric that govern legal reasoning and methods of legal reasoning employed by judges in conducting a judicial process. Here two or more cases will be sighted as illustrations to show empirical evidence that behind every judge’s reasoning is an influencing factor whether of political or moral aspect. The final part of the paper will establish the hypothesis that legal reasoning inevitably involves the application of political and moral values.

Legal scholars have variously defined legal reasoning as: “The process of careful thinking by a judicial officer in the course of resolving legal issues presented by a party to a legal action before his court for determination.”[1]

Legal reasoning encapsulates the analogical application of legalistic principles in relation to accepted moral, political and social norms adapted by a society. However, to further understand what is meant by legal reasoning it is pertinent to expatiate upon the composing words, “Legal” and “Reasoning”. The Black’s Law Dictionary defines “Legal” as; “Of or relating to law; falling within the remit of law”[2] and The Cambridge English Dictionary defines “Reasoning” as; “Thinking persuasively in a coordinated, orderly, sensible and logical manner”, whereas the Oxford English Dictionary defines it as: “The action of thinking about something in a logical, sensible way”[3].

From the foregoing, the definition of “Legal Reasoning” could be deduced as the skill, art or science of thinking persuasively in a coordinated, orderly, sensible and logical manner, on a matter relating to law. According to Routledge Encyclopaedia of Philosophy, legal reasoning has been defined by MacCormic as; “the process of devising, reflecting on, or giving reasons for legal acts and decisions or justifications for speculative opinions about the meaning of law and its relevance to action[4].

When judges and other judicial officers engage in legal reasoning they are guided by; Legal Principles, Rules and Legal Rhetoric. Legal Principles are defined by Farrar and Dugdale as:

“An established legal truth or proposition that is so clear that it cannot be reproved or contradicted except by a proposition which is clearer”.[5] Whereas legal principles may be classed as the body of laws, Rules are the clothing in which the body must be encapsulated. In other words, rules are the structures in which the principles must be applied. To illustrate, Lord Bingham’s “Rule of Law” as a legal Principle (or Standard), has 8 key rules, four of the cardinal ones being; Accessibility of the Law, Equality before the law, Protection of fundamental human rights, the fairness of adjudicative procedures by the state[6] . Any rule that may be applied outside its main principle is bound to be struck out by judges.

Legal Rhetoric on the other hand is defined by MacCormic as; the rational persuasive working within a structure by use of legally acceptable arguments to produce formal and predictive results.[7] Judges implement in this in their courts by citing authorities and the doctrine of precedent. This therefore raises a fundamental question; Do Judges make law and are they better moral arbiters than legislatures? The answer to this will form the basis of the second part of this paper but let’s first look at the methods of legal reasoning employed by judges.

Judges mainly employ 3 standard methods of legal reasoning namely; Inductive Reasoning/Logic, Deductive Reasoning/Syllogism and Analogic Reasoning. The scope of this paper does not accord the space to give merits and demerits of each of these methods but suffice to say that; Inductive Reasoning/Logic is the use of Precedent to arrive at a judgement. i.e court uses judgements in previous similar cases in similar circumstances to decide on a new case.

Deductive Reasoning/Syllogism is where Statutes are cited as the main authority and used to adjudge a case. Analogical Reasoning is employed by judges to deduce whether a cited authority is relevant by pointing out similarities and differences between cases.

Dworkin has argued that, judges are not necessarily the moral arbiters, when it comes to issues concerning morals and rights.[8] He continues ‘not because judges are morally inept but that the institutional setting in which they operate only allows them to reason in a legalistic way thus making it difficult for them to address moral issues’[9]. He contends that there are other legislative approaches that may be used to address societal morals thus inciting political decision makers as more befitting to make moral decisions for society.

It’s been argued that courts are sometimes better moral arbiters than legislatures, since the reasoning that goes on in courts ensures that fundamental rights issues and political morality will be addressed as a matter of principle rather than a political issue so as to deliver a judgement that does not lead to an absurdity. Whereas were courts not to be part of this, no guarantees could be given that even minority rights would be preserved. A typical case of avoiding an absurdity is seen in Re Sigsworth (1935); where a son killed his mother. She had not made a will hence died intestate. The Administration of Justice Act 1925 stipulated clearly that in cases of intestacy the next of kin stands to inherit the estate of the deceased. By applying the Golden Rule instead of the Literal Rule judges rejected the Statute’s reasoning and thus prevented the murderer benefiting from his crime. The Golden Rule is one the main methods of Statutory interpretation, the others being; Literal Rule, Purposive Approach and Mischief Rule[10].

In a landmark judgement, where judges acted to protect “The Rule of Law” and Human Rights is cited in A v Secretary of State for the Home Department [2004] UKHL 56. Also known as “The Belmarsh 9”. This a UK Human Rights case, that was heard in the House of Lords by a panel of 9 Law Lords. It was held that the continued detention of suspects indefinitely according to s.23 of the Anti-Terrorism, Crime & Security Act 2001, was in contravention of the European Convention on Human Rights Act 1998[11].

This judgement was an important milestone for judges protecting rule of law and human rights in a resounding rejection of a Labour’s policy of detaining foreign terrorist indefinitely without charge. In his ruling Lord Hoffman vehemently lamented: “The real threat to the life of the nation comes not from terrorism but from laws such as these.”[12] In this case judges used a moral standing to rule out Labour’s political stance

In 2007, Justice Antonin Scalia, a US Justice of the Supreme Court lashed out at a decision taken in the European Court of Human Rights regarding a certain British gay man only identified as ADT. The European Court overturned a ruling by a British court that had found ADT’s acts illegal, by citing a provision in the Human Rights Convention. He lamented that: “Moral Judgements have no place in courts, Judges are no better placed than any of us to decide cases on fundamental rights”[13].

Griffiths argues in his book[14] that judges are normally influenced by their political and moral exposure and arrive at decisions according to what they view as public interest, based on their pedigree and social status. They are usually inclined to maintaining the status quo, or social order between the governor and the governed, maintaining a hierarchy in society, preserving traditional values, dislike minority issues, protests, demonstrations etc. They are inclined towards private property, support for government policy and Secrecy yet harbour a dislike for Trade Unions. Thus, having a narrow definition of what they perceive to be public interest since they tend to view society as a homogenous interaction of the ‘haves and have-nots’, hence no tendency to change the status quo. A very clear reminder of Machiavellism propounded by Niccolò Machiavelli (1469-1527)[15].

One such example of public interest influence or political inclination on judges is cited in the ‘Fares Fair’ case: Bromley London Borough Council v Greater London Council (GLC) (1982).

The Labour controlled GLC had implemented a Party manifesto policy of subsidising Transport fares for the general good of the public through subsidies funded from the surplus of council tax held by local authorities. Conservative controlled Bromley Council brought a suit on grounds that the GLC did not have statutory powers to force local authorities to implement the directive. The judges held Bromley Council on a technicality of interpretation of operative word “economic”. Lord Scarman ruled that “economic” meant that GLC should provide cost-effective transport services without due recourse to council tax payers. Griffiths argues that judges ignored what the framers of the GLC statute intended to achieve and chose to rule based on the principles of market economy, and a disapproval of a social good through subsidising public fares using council tax payers’ money. This was clearly a political choice he argues.

Conversely, consider a scenario where judges made decisions without any influence at all from their moral or political inclination. This would make law very uncertain. According to The Nature of Law[16], law does not exist in a vacuum. Laws are made to guide society preserve its values and traditional norms. Even in Biblical era, laws were observed for societal good. It has been argued that laws exit because of society not vice versa. This is the theory of “Legal Positivism” formulated by the English Jurist John Austin, who argued that the existence of law and its content depended on social facts rather singularly on the merit of law[17]. The positivists theory does not propound that the merits of law are unimportant or unintelligent, but rather that their existence does not prove existence of a legal system. What makes law exist is the presence of governance structures which enforce the laws that have been drafted, ordered, accepted and adapted by society. Therefore, societal values i.e. moral and political will always simply and glaringly impact the law and the judiciary.

In conclusion, Dworkin[18] has argued that judges are better moral arbiters than legislators who are influenced by partisan politics, yet in courts society is certain that judges will reason cases based on their legal, moral and political inclination creating certain and predictive outcome.

Waldron[19] on the other hand agrees that judges come from society and are inadvertently influenced by political and ideological disposition. He argues that the very nature of being of judge, one has to be loyal to the tenets espoused by the Legal System such as recognition of the three arms of government (The Executive, Legislature and Judiciary) and supremacy of Parliament, public interest, the paramount importance of the doctrine of precedent, the quest for legal certainty and fairness. He argues that these decisions will inevitably be politically and ideologically based and inescapable by judges.

It is my submission therefore that legal reasoning will inevitably involve political and moral dimensions impacting the judge’s decisions. A case in support of Waldron’s views is cited in Arthur JS Hall & Co v Simmons (2000), in which the House Lords excused the barristers from liability in negligence for court work

References & Bibliography

1. Black’s Law Dictionary 9^th Edition
2. Barnett H: Constitutional & Administrative Law (Eleventh Edition, Routledge 2016) 414,419,439,531547,549,554,584,625, 626
3. Bradely A W, Ewing K D & Knight C J S: Constitutional & Administrative Law (Pearson 16^th Edition)85-86
4. Dworkin R:  A Matter of Principle 70 (Harvard Univ. Press 1985)
5. Elliot C & Quinn F: English Legal System (17^th Edition 2016/2017 Pearson) 55-63
6. Farrar, John H. & Dugdale, Anthony M. Introduction to Legal Method. (Sweet & Maxwell. 1984)
7. Griffith: The Politics of the Judiciary (1997)
8. Jeremy Waldron; Judges as Moral Reasoners, (International Journal of Constitutional Law, Volume 7, Issue 1, 1 January 2009), Pages 2–24 (Citing Ronald Dworkin)
9. MacCormick, Neil. Legal reasoning and interpretation, 1998. Routledge Encyclopaedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-reasoning-and-interpretation/v-1.
10. MacCormic Neil: Rhetoric and The Rule of Law(A Theory of Legal Reasoning, OUP 2009)
11. Machiavelli N.  Discourses on Livy 16 (Univ. Chicago Press 1996) (bk. I, Ch. iv)
12. Marmor, Andrei and Sarch, Alexander, “The Nature of Law”, The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2015/entries/lawphil-nature/>
13. [1] (n15) citing John Austin (1790-1859) p.157
14. A.O Sanni: Introduction to Legal Method (2^nd Edition, Obafemi Awolowo University Press)
15. The Concise English Dictionary 9^th Edition and The Oxford English Dictionary 10^th Edition
16. Waldron J: The Law (Theory and Practice in British Politics, Routledge 1990)

Table of Cases:

1. A v Secretary of State for the Home Department [2004] UKHL 56.
2. Arthur JS Hall & Co v Simmons (2000)
3. Bromley London Borough Council v Greater London Council (GLC) (1982)
4. Sigsworth Re (1935)

Online Resources:

•  https://www.theguardian.com/law/2013/dec/04/law-cases-essential-student
• https://www.telegraph.co.uk/news/uknews/1573187/Moral-judgments-have-no-place-in-court.html

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[1] A.O Sanni: Introduction to Legal Method (2^nd Edition, Obafemi Awolowo University Press)

[2] Black’s Law Dictionary 9^th Edition

[3] The Cambridge English Dictionary 9^th Edition and The Oxford English Dictionary 10^th Edition

[4] MacCormick, Neil. Legal reasoning and interpretation, (Routledge Encyclopaedia of Philosophy, Taylor and Francis, 1998), https://www.rep.routledge.com/articles/thematic/legal-reasoning-and-interpretation/v-1.

[5] Farrar, John H. & Dugdale, Anthony M. Introduction to Legal Method. (Sweet & Maxwell. 1984)

[6] Bradely A W, Ewing K D & Knight C J S: Constitutional & Administrative Law (Pearson 16^th Edition)85-86

[7] MacCormic Neil: Rhetoric and The Rule of Law (A Theory of Legal Reasoning, OUP 2009)

[8] Jeremy Waldron; Judges as Moral Reasoners, (International Journal of Constitutional Law, Volume 7, Issue 1, 1 January 2009), Pages 2–24 (Citing Ronald Dworkin)

[9] Waldron J (n8)

[10] Elliot C & Quinn F: English Legal System (17^th Edition 2016/2017 Pearson) 55-63

[11] Barnett H: Constitutional & Administrative Law (Eleventh Edition, Routledge 2016) 414,419,439,531547,549,554,584,625, 626

[12] Barnett (n11),  https://www.theguardian.com/law/2013/dec/04/law-cases-essential-student, Last accessed 11/08/2018

[13] https://www.telegraph.co.uk/news/uknews/1573187/Moral-judgments-have-no-place-in-court.html

[14] Griffith: The Politics of the Judiciary (1997)

[15] Machiavelli N.  Discourses on Livy 16 (Univ. Chicago Press 1996) (bk. I, ch. iv)

[16] Marmor, Andrei and Sarch, Alexander, “The Nature of Law”, The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/fall2015/entries/lawphil-nature/) Last accessed 11/08/2018

[17] (n15) citing John Austin (1790-1859) p.157

[18] Dworkin R:  A Matter of Principle 70 (Harvard Univ. Press 1985)

[19] Waldron J: The Law (Theory and Practice in British Politics, Routledge 1990)