Introduction
Judicial determinations are the outcomes of events in which the adjudicators are constrained by defined rules, independent from extraneous influences, and bound by their social experiences or sensibilities. In Duncan Kennedy’s Freedom and Constraint in Adjudication: A Critical Phenomenology, the interpretation of the law is presented as a constant interchange between law and life.
Consequently, most judicial decisions are obvious outcomes reflecting the legal arguments, presented facts, and the judge’s ideological commitments. However, Kennedy argues that adjudicators develop the desired outcome at the initial presentation of a dispute. As a result, the subsequent interpretation and analysis of the law attempt to support their sense of justice and substantiate their decisions to make the judgment acceptable. While this argument mirrors the inherent tension and interplay between life and the law, it underpins the unavoidability of the principle of political neutrality in adjudication processes. Although judges usually reach their decisions by observing the legal rules of judging and exercising their freedoms in making judicial choices, their experiences and social context often influence the outcome of cases.
Duncan Kennedy’s Rejection of Political Neutrality in Adjudication
Adjudication is the process through which judicial officers exercise their authority to determine disputes. It encompasses judges’ interpretation of the law through the observance of the established legal constraints and the exercise of judicial choices in making determinations. Kennedy (526) contends that judicial processes reflect a constant interplay between freedom and constraint. Manko (2) corroborates this view and asserts that traditionally, adjudicators determine matters brought before them by interpreting and contextualizing the laws against the presented facts and evidence. However, such an interpretation involves engaging with the questions of value, which indicates that adjudicators cannot avoid integrating political considerations in their decision-making. This implies that the interpretation of the law is not entirely a constrained or wholly open undertaking. As a result, judges feel obligated to interpret the law in a clearly defined manner and in accordance with their sense of justice. This subjectivity reflects the phenomenological aspects of the interpreter of the law and comprises the context and ideological commitment of the judges.
Additionally, the literal interpretation of the law limits the ability of the judicial officers to sufficiently explore and consider the materials presented. In most cases, the legal resources point to clearly defined outcomes after evaluating the facts and arguments. This suggestion implies that judges are, by law preprogrammed to deliver obvious conclusions through the objective interpretation of the applicable legal provisions (Klaasen 1). However, Kennedy (527) argues that the existing laws often do not provide definitive answers to a dispute, yet judges are required to make determinations. This would mean that adjudicators are technically barred from making some judicial determinations through the correct legal reasoning. According to van Domselaar (72), such fixation on the rules and principles reduces judicial proceedings to empty rituals performed towards determinate outcomes. Harris and Sen (242) posit that such a viewpoint contradicts the longstanding empirical observation that law and its application are never certain, clear, and exact but is variable and vague. With such imprecision, indeterminateness, and lack of clear right answers, it would be imprudent and unreasonable to expect judges to be politically neutral.
Judicial decision-making is a highly variable process and is influenced by such other extraneous factors as judges’ backgrounds, life experiences, and ideological commitments. Harris and Sen (242) illustrate that variations in judicial decisions and reasoning do not necessarily indicate an underlying bias but could depict judges’ reference to such factors as context, purpose, rationale, and value of the law. Notably, Kennedy’s publication underscores the essence of adjudicators’ ability to evaluate normative and value-oriented considerations. According to Kennedy (519), reflecting upon such factors enriches the adjudication process by providing descriptions lost in the law’s objective interpretation. This view depicts Kennedy’s rejection of political neutrality and encourages judicial officers to consider even nuanced contextual factors when pursuing social justice. According to Brinks and Bass (296), allowing such liberty to judges gives them specificity to the existing descriptive labels and allows distinct judicial decisions. In this regard, adjudicators find multiple ways of resolving interpretive problems, implying that they can discover the political and moral principles underlying various laws.
Political neutrality in judicial proceedings impedes judges’ ability to enrich their decision-making by adopting a value-oriented interpretation of the law. This entails engaging with a broader evaluation of the objective, purpose, and value of the rules. For instance, Kennedy argues that political neutrality may limit the adjudicator’s view of the peculiar circumstances of a given case because the law requires that decision-makers follow a specified direction. Manko (4) notes that judges should have the liberty to find legal solutions and justifications for their decisions by focusing on materials that can only be understood contextually or through political analysis. To this extent, Kennedy dismisses political neutrality in adjudication processes and argues that adopting such an attitude converts legal interpretation into a mechanical application of existing laws. Notably, judges should do more than take the face value of facts, arguments, and laws as presented to them during cases because of the potential of striking the wrong balance between conflicting groups. Therefore, Kennedy is pessimistic about how a decision-maker would identify an unjust overall arrangement if their views and determinations were exclusively based on facts and the law.
Further, in any pure sense, the law is not neutral nor mechanical. It indispensably involves interpretive actors striving to do their best in identifying the good answers that can help resolve problems. In his assertion, Kennedy emphasizes the essence of integrating phenomenology in judging. In many instances, the clear meaning and proper interpretation of a legal provision are enhanced by its context. Consequently, adjudication is not the mere application of laws to matters but is the reflection of multiple factors, including the environment in which such legal provisions operate and how the outcome mirrors acceptable levels of fairness. Van Domselaar (73) notes that the decision of a legal case is ultimately defined by the way the people who participate in the proceedings deal with the facts. In the hypothetical scenario of a Boston judge, the adjudicator’s sense of justice and ideological commitment heavily influence his decision. Kennedy posits that political neutrality in judicial proceedings is a type of legal formalism that should be rejected due to its disregard for such realistic aspects as shared prejudices between judges and their fellow men.
The interpretation and application of laws should be adjusted to suit the doctrines and principles of the people they govern. This implies that the significance of the law is its effects and not merely its application. From this perspective, judicial officers should integrate sociological contexts into the entire reasoning process (Harris & Sen 244). In the hypothetical Boston scenario, Kennedy feels that the application of the law ought to have been in tandem with the prevailing American economic life. However, there were no rules to guide the judge, yet a decision had to be made. In such situations, Kennedy argues that political neutrality would be ultimately detrimental. Therefore, judges presiding over diverse matters should develop and express socially acceptable preferences that allow them to intervene effectively on various matters.
Additionally, in the Boston scenario, the judge should have made a determination that reflected the dynamics manifested by the employers and workers at the time. However, in the absence of clear rules or laws to guide the judge in forming a socially acceptable decision, the only recourse was to resort to their subjective identity and life experiences. In such instances, Kennedy opines that the ideological commitment of the judicial officers plays an influential role in developing an acceptable outcome. In this regard, judicial work is political, considering the adjudicators’ search for meanings outside legal materials and the eventual assumption of responsibility for outcomes emanating from such an exercise. Consequently, professional habits, espoused ideologies, and personal sensibilities are critical attributes of judicial actors (Zreik 199). According to Klaasen (2), political neutrality would impede the ability of judges to resolve disputes in instances where the existing laws do not provide direction or clearly defined guidelines. Therefore, Kennedy argues that judges who are partisan or subscribe to a particular ideological commitment can make balanced and well-reasoned determinations by referring to their attitudes and values.
Concurrence with Kennedy’s Views
Since the law is the product of the human mind, legal reasoning and judicial determinations are unavoidably influenced by the functioning and the structure of cognition. It is context-dependent and judicial decision-making reflects the societal environment in which adjudicators operate. Additionally, the process of adjudication depicts a constant interplay between the law, life, passion, and reason, which are in latent hostility, with none diminishing or eroding the other. This implies that legal reasoning is inherently dependent on deeply held ideologies by judges despite operating within the boundaries of judicial freedom and constraint. In this regard, the interpretation and application of the law purely on its face value would lead to unjust consequences. As a result, judges should reference their sensibilities, experiences, and ideological commitments to make sound and socially acceptable decisions.
Moreover, there is a potential for judges to apply the law in its literal meaning to deny or deflect the responsibility for unfair outcomes. From this perspective, decision-makers in judicial proceedings should go beyond the initial apprehension of the law and give it meaning by contextualizing the implications of the determination. These views illustrate the realistic aspect of Kennedy’s rejection of political neutrality in judicial proceedings, which converts adjudicators to mechanical interpreters of the law. As a result, judges’ understanding, sense, and conception of justice can enrich judicial outcomes by ensuring that they fit well with society and advance legal normativity.
Objections to Political Neutrality
Although judges should not be limited when making judicial interpretations, allowing political neutrality could potentially expand their interpretive powers and destabilize the primary objective of the laws. This can lead to the abuse of judicial powers, especially where the existing laws do not provide definitive answers or roadmaps to determining a dispute. Additionally, there are no precise definitions of what such interpretive theories as value-oriented considerations entail. Therefore, political neutrality would allow judges to disregard judicial constraints and freedoms and make irrational decisions as long as they can rationalize and justify them.
Conclusion
Adjudication is a process through which judges utilize their powers to make judicial determinations and resolve disputes. They achieve this by interpreting legal rules and anchoring their decisions in existing laws. However, there are instances where adjudicators’ political neutrality would imperil their ability to formulate just judgments and potentially put a party in a dispute at a significant disadvantage. Therefore, judicial officers should not be politically neutral, and their determinations should reflect their ideological commitments and life experiences.
References
Brinks, D., & Blass, A. (2017). Rethinking judicial empowerment: The new foundations of constitutional justice. International Journal of Constitutional Law, 15(2), 296-331. Web.
Harris, A., & Sen, M. (2019). Bias and judging.Annual Review of Political Science, 22(1), 241-259. Web.
Klaasen, A. (2017). Constitutional interpretation in the so-called ‘hard cases’: Revisiting S v Makwanyane. De Jure, 50(1), 1-17. Web.
Kennedy, D. (1986). Freedom and constraint in adjudication: A critical phenomenology. Journal of Legal Education, 36(4), 518-562.
Manko, R. (2021). Judicial decision-making, ideology and the political: Towards an agonistic theory of adjudication.Law and Critique, 1-20. Web.
van Domselaar, I. (2017). The perceptive judge. Jurisprudence, 9(1), 71-87. Web.
Zreik, R. (2019). Ronald Dworkin and Duncan Kennedy: Two views of interpretation. Canadian Journal of Law & Jurisprudence, 32(1), 195-234. Web.