Law as Adjudication: Against a Backdrop of Traditional Legal Objectivity, is there Space for the Subjective?

AuthorChelsea Shar
Position4th Year Student, School of Law, University of the Witwatersrand
Pages97-118
[2014] COLR
97
LAW AS ADJUDICATION: AGAINST A BACKDROP OF TRADITIONAL LEGAL
OBJECTIVITY, IS THERE SPACEFOR THE SUBJECTIVE?
Chelsea Shar*
A INTRODUCTION
The judge: presumably an impartial adjudicator tasked with judicial decision-making
supported by evidence and fact. Traditional legal theory, according to Maroney, holds that
objectivity and an absence of emotion are expected of the judicial role. If emotion
nevertheless exists, it is repressed, for apparently emotion contorts objective legal reasoning.1
Ultimately, the traditional legal theory of which Maroney speaks is the long-standing
objectivity jurisprudence, especially evident in Anglo-American jurisprudence.2 Embedded in
this traditionally objective judicial process are the principles of neutrality and impersonality
for any hint of an individualistic judgment risks bias and an airing of advancement of one’s
own personal interests.3 Therefore a model of judicial reserve is adopted in the procurement
of impersonal jurisprudence.4 However, this model of judicial reserve, and the position of
neutral and impersonal decision-making, is, according to Ray, irrefutably flawed.5 This
article wishes to explore this flawed position, and duly argues for a subjective embrace – that
there is not only space for the subjective, inclusive of emotions, but also that it is embraced.
Law as adjudication is not merely an objective exercise of interpreting legal texts; it is an
exercise that exceeds far beyond the impartial – it is also subjective and personal.
An account of ‘pure objectivism’ renders ‘objectivism a complex of ideas. It includes a realist
ontology; a positivist epistemology; a correspondence theory of truth and scientific progress;
and anaxiology of disinterest.’6Being too burdensome totackle eachaspect of the
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*4thYearStudent,SchoolofLaw, UniversityoftheWitwatersrand.
1Terry A Maroney,‘Lawandemotion: A proposedtaxonomyofanemergingfield’(2006)30LawandHuman
Behaviour119,132.
2Robert W Bennett,‘ObjectivityinConstitutionallaw’(1984)132UniversityofPennsylvaniaLawReview
445,445;Connie S Rosati,‘Somepuzzlesabouttheobjectivityoflaw’(2004)23LawandPhilosophy273,
273.
3LauraKrugmanRay,‘Judicialpersonality:Rhetoricandemotion in SupremeCourtopinions’(2002)59
Washington & LeeLawReview193,212.
4ibid.
5ibid.
6BrianFay,ContemporaryPhilosophyofSocialScience(Wiley-Blackwell1996)204.
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complexity that is objectivism, this article focuses on the epistemology; on the Positivists
such asHLA Hart and, insome sense, Lon L Fuller,7toprovide substantiation that, infact,
and quite ironically, adjudication is not wholly objective, impersonal, and neutral. Although
the temptation to speak of Ronald Dworkin where one speaks of Hart is present, Dworkin is
an interesting (legal) philosopher to include because Dworkin provides somewhat of an
amalgamation of the objective and subjective contingencies of legal interpretation, although
Dworkin himself does not restrict his theory tosuch rigid terms.8 However, there is yet
further justification beyond Dworkin, that of Martin Heidegger, who, tosome extent,
proposes that a theory of adjudication is somewhat impossible to delineate. Heidegger’s
proposition mayseemto defeat the purpose of this article entirely, though being oxymoronic
in nature Heidegger infact propels the argument metaphysically. Leading nicely therefrom is
the theory of law and emotions, without which the article would remain one-dimensional in
the realm of legal theory only. The final stratum in the completion of a comprehensive
analysis of the subjective embrace, in response to the objective/subjective dichotomy of
adjudication, is a practical example of a South African case study.
Following therefrom Section B provides a matrix for the theory of adjudication; Section C
discusses Hart’s rule of adjudication in presenting a modest indication of the subjective,
which is advanced inSection D by Fuller’s theory of meaning. It isDworkin’s theory of
interpretation, though, that lends the fullest verification of the inclusiveness and embrace of
the subjective inthe art of adjudication, which ispresented in Section E. Section F discusses
both Heidegger’s interpretation of a theory of adjudication aswellas the theory of law and
emotions. Section G presents a brief South African case study of Prince v President, Cape
Law Society,9 which consolidates the core argument of this article that judicial decisions can
never be wholly objective for in the realm that dictates human interaction, the personal and
the subjective of the human judge will never ceasetocreep into the equation that is legal
reasoning.
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7Eugene E Dais,‘Jusnaturalism,legalpositivismandperspectivalconfusion:TheFuller-Hartdebaterevisited’
inCuriel-Benfield,JL(ed)PhilosophyofLawandSocialProblemsofPhilosophy69,70-71.ThoughFulleris
neverthelessalignedwiththeNaturalists.ibid75-76.
8StephenGuest,RonaldDworkin(Jurists:ProfilesinLegal TheorySeries) (1992)132-133.
9Prince v President,CapeLawSociety,AndOthers2002 2 Sa794(CC).

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