Ideology Influences in Judicial Decision Making

Consider the following:

1. 1. How does ideology influence judicial decision making?
   2. What is legal liberalism? Does a liberal form of rights fail to remedy systemic forms of discrimination? Why or why not?

1. 1. How does ideology influence judicial decision making?

‘Judges make, they do not discover, law.’ If one does not accept this proposition as applicable to the modern justice system in Western society generally, there can be no place for ideology or its near cousin, politics, in judicial decision making.

It is contended that ideology not only influences the judicial process, it is inextricably linked to the entire judicial structure. The manner in which judges are selected to act is one where ideology must play a role, no matter what type of justice system is in place. Judges bring their own personality and biases to their role; it is inconsistent with basic human nature to assume that a judge becomes a legal automaton in the interpretation of the law upon being sworn in to their office.

In the United States, federal judges are nominated by the executive branch and approved by the legislative branch of government. Legislative approval of a judicial appointment will invariably involve a consideration of how the prospective appointee views issues such as the interpretation of the Constitution, or how they regard social-legal issues such as abortion (e.g. whether the nominee would support a re-consideration of the abortion rule in Roe v Wade is a standard nomination enquiry). Any system where political representatives endorse a judicial appointment must be ideological in nature.

In the UK and Canada, the judicial appointment process is more opaque, resting as it does in the power of the government of the day. Political patronage, and consequently some level of ideological influence in the appointment process, is implicit –governments are not inclined (although circumstances may rarely arise) to appoint an ideological opponent to secure judicial tenure. In his text Judicial Discretion in the House of Lords, David Robertson concluded that the prevailing attitudes fostered by the judicial system, that judges operate from a strictly neutral or technical standard of legal interpretation, is a myth when data (‘jurimetrics’) is carefully analysed. Judges tend to be influenced by personal ideology and convictions – Robertson found as one example that ‘…It is precisely the cast of legal mind that restricts public law claimants in their pursuit of aid from the State to the narrower of statutory interpretations which also makes it harder for the State arbitrarily to employ its coercive powers through the criminal law’.

How a judge thinks in the course of arriving at a conclusion is a central aspect of jurisprudence. Analytical jurisprudence illustrates the mental processes in which a judge engaged in reaching a decision.

An inverse analysis may be applied with reference to the influence of the so-called radical lawyers of the UK in the 1970s, a group prominent for their advocacy of liberal causes (and gently satirised by John Mortimer through his fictional barrister Horace Rumpole). Marcel Berlins wrote in 1999 that the radicals when appointed to the bench tended to adopt a more conventional ideology, just as the perceived judicial dinosaurs embraced human rights and modernity. Berlins asserts that ideology in this context is personal, but supremely flexible to permit a judge to be a part of a perceived modern and effective legal structure.

2. 2. What is legal liberalism? Does a liberal form of rights fail to remedy systemic forms of discrimination? Why or why not?

Legal liberalism is an expression capable of supporting a number of definitions. For the present purpose, legal liberalism is the belief that the legal system can promote widespread social reform. There is an element of historical context implicit in this definition – what represents a movement for reform of the law in one generation may be regarded as quaint or faintly reactionary at later time.

Legal liberalism as an instrument of social change become prominent in a number of Western nations in the 1970s and 1980s; the advent of entrenched constitutional equality rights in Canada (1982 Charter of Rights and Freedoms), and the development of the UK Human Rights Act, with its incorporation by reference of European human rights conventions into UK social contexts are clear examples of liberalising influences within the law.

Legal liberalism evolved from an inter relationship between law and the social sciences (e.g. criminology and sociology in criminal justice). Its supporters sought to make an impact beyond the boundaries of the law to effect social change. The law in this liberal framework is promoted as a positive and pervasive influence upon every aspect of society. It is in this sense that liberal nations operate on what has been called a ‘presumption of liberty’, a principle that demands justification for any legal constraint placed upon a citizen.

Nicholas Blomley has noted in this context that boundaries occupy an important role in all conceptions of legal order; metaphorical boundaries are central to legal liberalism, where the ‘art of separation’ maintains order through the separation of human activity into different realms.

Opponents of legal liberalism, a particularly vocal element in the United States, decry the concept as perverting law and order, where Robin Hoods in judicial robes has created chaos and disrespect for societal structures. Legal liberalism, particularly as manifested in Critical Legal Studies, was seen as a deconstruction of order into a world of ever-broader liability for deep pocketed and insured civil law defendants where any injured claimant must be compensated.

However, it is contended that the concept of the legal boundary is precisely the problem attached to legal liberal doctrines. Even the most just and enlightened of liberal systems must establish and maintain legal boundaries as to what society will tolerate. This element is borne out in Canada and the UK; the legal constraints concerning what may be published or depicted in public in each country are examples of such boundaries.

It is contended that if the drawing of boundaries is inherent in legal liberalism, even to redress perceived systemic wrongs, the new system produced by re drawing and redefinition must itself become over time the old order that will require reconstruction and repair. In a simple linear example, Western societies dealt with racial discrimination, followed by gender and sexual discrimination; methods of public religious observance (such as the current controversies over the wearing of a veil by Muslim women) are current issues. In this model, the organic nature of modern society means that liberal legalism is inherently reactionary and not progressive as may be imagined. Societal problems that require legal attention can only be considered solved in the past and present, and not in the future tense.

Note (the following does not form part of the completed brief; the following were sources consulted in the formulation of the paper that the client may wish to consult for their interest)

Q (i)

Berlins, Marcel ‘The Radical Lawyers’ New Statesman, (March 5, 1999) 129: 4426, 18+

Kennedy, Duncan A Semiotics of Critique, 22 Cardozo L. Rev. 1147, 1166-67 (2001) http://duncankennedy.net/documents/A%20Semiotics%20of%20Critique.pdf

Mnookin, Jennifer L. ‘Plea Bargaining’s Triumph: A History of Plea Bargaining in America’ (2005) Stanford Law Review 57: 5, 1721

Robertson, David Judicial Discretion in the House of Lords. (Oxford: Clarendon Press. 1998)

Shapiro, Martin On Law, Politics and Judicialization (Oxford University Press, 2002)

Q (ii)

Blomley, Nicholas ‘The Boundaries of Property: Lessons from Beatrix Potter’ (20040 The Canadian Geographer 48: 2, 91+

Bates, Stephen ‘How Law Destroys Order’ (1991) National Review 3: 2, 28+