{"id":427,"date":"2019-04-10T10:38:53","date_gmt":"2019-04-10T10:38:53","guid":{"rendered":""},"modified":"2019-06-11T08:52:01","modified_gmt":"2019-06-11T08:52:01","slug":"influence-political-values-judges-0288","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/english-legal-system\/influence-political-values-judges-0288.php","title":{"rendered":"Influence of Political and Moral Values of Judge Reasoning"},"content":{"rendered":"

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\u2019 reasoning<\/a> during interpretation of statutes and adjudicating in a judicial process.<\/p>\n

The
\nfirst part of the paper will attempt to define what is meant by legal reasoning
\nas defined by various scholars, and the second part will delve into the rules,
\nprinciples and legal rhetoric that govern legal reasoning and methods of legal
\nreasoning employed by judges in conducting a judicial process. Here two or more
\ncases will be sighted as illustrations to show empirical evidence that behind
\nevery judge\u2019s reasoning is an influencing factor whether of political or moral
\naspect. The final part of the paper will establish the hypothesis that legal
\nreasoning inevitably involves the application of political and moral values.<\/p>\n

Legal scholars have variously defined legal reasoning<\/a> as: \u201cThe 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.\u201d[1]<\/a><\/p>\n

Legal reasoning
\nencapsulates the analogical application of legalistic principles in relation to
\naccepted moral, political and social norms adapted by a society. However, to
\nfurther understand what is meant by legal reasoning it is pertinent to
\nexpatiate upon the composing words, \u201cLegal\u201d and \u201cReasoning\u201d. The Black\u2019s Law
\nDictionary defines \u201cLegal\u201d as; \u201cOf
\nor relating to law; falling within the remit of law\u201d[2]<\/a>
\nand The Cambridge English
\nDictionary defines \u201cReasoning\u201d as; \u201cThinking
\npersuasively in a coordinated, orderly, sensible and logical manner\u201d, whereas
\nthe Oxford English Dictionary defines it as: \u201cThe
\naction of thinking about something in a logical, sensible way\u201d[3]<\/a>.<\/p>\n

From the foregoing,
\nthe definition of \u201cLegal Reasoning\u201d could be deduced as the skill, art or
\nscience of thinking persuasively in a coordinated, orderly, sensible and
\nlogical manner, on a matter relating to law. According to Routledge
\nEncyclopaedia of Philosophy, legal reasoning has been defined by MacCormic as;
\n\u201cthe process of devising,
\nreflecting on, or giving reasons for legal acts and decisions or justifications
\nfor speculative opinions about the meaning of law and its relevance to action[4]<\/a>.<\/p>\n

When judges and other judicial officers
\nengage in legal reasoning they are guided by; Legal Principles, Rules and Legal
\nRhetoric. Legal Principles are defined by Farrar and Dugdale as:<\/p>\n

\u201cAn established legal truth or proposition that is so clear that it cannot be reproved or contradicted except by a proposition which is clearer\u201d.[5]<\/a> 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\u2019s \u201cRule of Law\u201d 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]<\/a> . Any rule that may be applied outside its main principle is bound to be struck out by judges. <\/p>\n

Legal Rhetoric on the other hand is
\ndefined by MacCormic as; the rational persuasive working within a structure by
\nuse of legally acceptable arguments to produce formal and predictive results.[7]<\/a>
\nJudges implement in this in their courts by citing authorities and the doctrine
\nof precedent. This therefore raises a fundamental question; Do Judges make law
\nand are they better moral arbiters than legislatures? The answer to this will
\nform the basis of the second part of this paper but let\u2019s first look at the
\nmethods of legal reasoning employed by judges.<\/p>\n

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. <\/p>\n

Deductive Reasoning\/Syllogism is where
\nStatutes are cited as the main authority and used to adjudge a case. Analogical
\nReasoning is employed by judges to deduce whether a cited authority is relevant
\nby pointing out similarities and differences between cases.<\/p>\n

Dworkin has argued that, judges are not necessarily the moral arbiters, when it comes to issues concerning morals and rights.[8]<\/a> He continues \u2018not 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\u2019[9]<\/a>. 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.<\/p>\n

It\u2019s been argued that
\ncourts are sometimes better moral arbiters than legislatures, since the
\nreasoning that goes on in courts ensures that fundamental rights issues and
\npolitical morality will be addressed as a matter of principle rather than a
\npolitical issue so as to deliver a judgement that does not lead to an
\nabsurdity. Whereas were courts not to be part of this, no guarantees could be
\ngiven that even minority rights would be preserved. A typical case of avoiding
\nan absurdity is seen in Re Sigsworth
\n(1935); <\/em>where a son killed his mother. She had not made a will hence died
\nintestate. The Administration of Justice Act 1925 stipulated clearly that in cases
\nof intestacy the next of kin stands to inherit the estate of the deceased. By
\napplying the Golden Rule instead of the Literal Rule judges rejected the
\nStatute\u2019s reasoning and thus prevented the murderer benefiting from his crime.
\nThe Golden Rule is one the main methods of Statutory interpretation, the others
\nbeing; Literal Rule, Purposive Approach and Mischief Rule[10]<\/a>.<\/p>\n

In a landmark judgement, where judges acted to protect \u201cThe Rule of Law\u201d and Human Rights is cited in A v Secretary of State for the Home Department [2004] UKHL 56<\/em>. Also known as \u201cThe Belmarsh 9\u201d. 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]<\/a>.<\/p>\n

This judgement was an
\nimportant milestone for judges protecting rule of law and human rights in a
\nresounding rejection of a Labour\u2019s policy of detaining foreign terrorist
\nindefinitely without charge. In his ruling Lord Hoffman vehemently lamented: “The real threat to the life of the nation comes not from
\nterrorism but from laws such as these.”[12]<\/a>
\nIn this case judges used a
\nmoral standing to rule out Labour\u2019s political stance<\/p>\n

In 2007, Justice
\nAntonin Scalia, a US Justice of the Supreme Court lashed out at a decision
\ntaken in the European Court of Human Rights regarding a certain British gay man
\nonly identified as ADT. The European Court overturned a ruling by a British
\ncourt that had found ADT\u2019s acts illegal, by citing a provision in the Human
\nRights Convention. He lamented that: \u201cMoral Judgements have no place in courts,
\nJudges are no better placed than any of us to decide cases on fundamental
\nrights\u201d[13]<\/a>.<\/p>\n

Griffiths argues in his book[14]<\/a> 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 \u2018haves and have-nots\u2019, hence no tendency to change the status quo. A very clear reminder of Machiavellism propounded by Niccol\u00f2 Machiavelli (1469-1527)[15]<\/a>.<\/p>\n

One such example of public
\ninterest influence or political inclination on judges is cited in the \u2018Fares
\nFair\u2019 case: Bromley London Borough
\nCouncil v Greater London Council (GLC) (1982).<\/em><\/p>\n

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 \u201ceconomic\u201d. Lord Scarman ruled that \u201ceconomic\u201d 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\u2019 money. This was clearly a political choice he argues.<\/p>\n

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]<\/a>, 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 \u201cLegal Positivism\u201d 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]<\/a>. 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.<\/p>\n

In conclusion, Dworkin[18]<\/a> 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.<\/p>\n

Waldron[19]<\/a>
\non the other hand agrees that judges come from society and are inadvertently
\ninfluenced by political and ideological disposition. He argues that the very
\nnature of being of judge, one has to be loyal to the tenets espoused by the
\nLegal System such as recognition of the three arms of government (The
\nExecutive, Legislature and Judiciary) and supremacy of Parliament, public
\ninterest, the paramount importance of the doctrine of precedent, the quest for
\nlegal certainty and fairness. He argues that these decisions will inevitably be
\npolitically and ideologically based and inescapable by judges. <\/p>\n

It is my submission
\ntherefore that legal reasoning will inevitably involve political and moral
\ndimensions impacting the judge\u2019s decisions. A case in support of Waldron\u2019s
\nviews is cited in Arthur
\nJS Hall & Co v Simmons<\/em> (2000)<\/em><\/a>, <\/em>in which the House Lords excused the
\nbarristers from liability in negligence for court work<\/p>\n

References & Bibliography<\/h2>\n
    \n
  1. Black\u2019s Law Dictionary 9th<\/sup> Edition<\/li>\n
  2. Barnett H: Constitutional & Administrative Law (Eleventh Edition, Routledge 2016) 414,419,439,531547,549,554,584,625, 626<\/li>\n
  3. Bradely A W, Ewing K D & Knight C J S: Constitutional & Administrative Law (Pearson 16th<\/sup> Edition)85-86<\/li>\n
  4. Dworkin R:  A Matter of Principle 70 (Harvard Univ. Press 1985)<\/li>\n
  5. Elliot C & Quinn F: English Legal System (17th<\/sup> Edition 2016\/2017 Pearson) 55-63 <\/li>\n
  6. Farrar, John H. & Dugdale, Anthony M. Introduction to Legal Method. (Sweet & Maxwell. 1984)<\/li>\n
  7. Griffith: The Politics of the Judiciary (1997)<\/li>\n
  8. Jeremy Waldron; Judges as Moral Reasoners, (International Journal of Constitutional Law<\/em>, Volume 7, Issue 1, 1 January 2009), Pages 2\u201324 (Citing Ronald Dworkin)<\/li>\n
  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<\/a>.<\/li>\n
  10. MacCormic Neil: Rhetoric and The Rule of Law(A Theory of Legal Reasoning, OUP 2009)<\/li>\n
  11. Machiavelli N.  Discourses on Livy 16 (Univ. Chicago Press 1996) (bk. I, Ch. iv)<\/li>\n
  12. Marmor, Andrei and Sarch, Alexander, “The Nature of Law”, The Stanford Encyclopedia of Philosophy <\/em>(Fall 2015 Edition), Edward N. Zalta (ed.), URL = <https:\/\/plato.stanford.edu\/archives\/fall2015\/entries\/lawphil-nature\/><\/li>\n
  13. [1] (n15) citing John Austin (1790-1859) p.157<\/li>\n
  14. A.O Sanni: Introduction to Legal Method (2nd<\/sup> Edition, Obafemi Awolowo University Press)<\/li>\n
  15. The Concise English Dictionary 9th<\/sup> Edition and The Oxford English Dictionary 10th<\/sup> Edition<\/li>\n
  16. Waldron J: The Law (Theory and Practice in British Politics, Routledge 1990)<\/li>\n<\/ol>\n

    Table of Cases:<\/h3>\n
      \n
    1. A v Secretary of State for the Home Department [2004] UKHL 56.<\/li>\n
    2. Arthur JS Hall & Co v Simmons (2000)<\/li>\n
    3. Bromley London Borough Council v Greater London Council (GLC) (1982)<\/li>\n
    4. Sigsworth Re (1935)<\/li>\n<\/ol>\n

      Online Resources:<\/h3>\n