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

• Author: Chelsea Shar
• Position: 4th Year Student, School of Law, University of the Witwatersrand
• Pages: 97-118

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LAW AS ADJUDICATION: AGAINST A BACKDROP OF TRADITIONAL LEGAL

OBJECTIVITY, IS THERE SPACE FOR 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 an axiology of disinterest.’6 Being too burdensome to tackle each aspect of the

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*4th Year Student, School of Law, University of the Witwatersrand.

1 Terry A Maroney, ‘Law and emotion: A proposed taxonomy of an emerging field’ (2006) 30 Law and Human

Behaviour 119, 132.

2 Robert W Bennett, ‘Objectivity in Constitutional law’ (1984) 132 University of Pennsylvania Law Review

445, 445; Connie S Rosati, ‘Some puzzles about the objectivity of law’ (2004) 23 Law and Philosophy 273,

273.

3 Laura Krugman Ray, ‘Judicial personality: Rhetoric and emotion in Supreme Court opinions’ (2002) 59

Washington & Lee Law Review 193, 212.

4 ibid.

5 ibid.

6 Brian Fay, Contemporary Philosophy of Social Science (Wiley-Blackwell 1996) 204.

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complexity that is objectivism, this article focuses on the epistemology; on the Positivists

such as HLA Hart and, in some sense, Lon L Fuller,7 to provide substantiation that, in fact,

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 to such rigid terms.8 However, there is yet

further justification beyond Dworkin, that of Martin Heidegger, who, to some extent,

proposes that a theory of adjudication is somewhat impossible to delineate. Heidegger’s

proposition may seem to defeat the purpose of this article entirely, though being oxymoronic

in nature Heidegger in fact 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 in Section D by Fuller’s theory of meaning. It is Dworkin’s theory of

interpretation, though, that lends the fullest verification of the inclusiveness and embrace of

the subjective in the art of adjudication, which is presented in Section E. Section F discusses

both Heidegger’s interpretation of a theory of adjudication as well as 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 cease to creep into the equation that is legal

reasoning.

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7 Eugene E Dais, ‘Jus naturalism, legal positivism and perspectival confusion: The Fuller-Hart debate revisited’

in Curiel-Benfield, JL (ed) Philosophy of Law and Social Problems of Philosophy 69, 70-71. Though Fuller is

nevertheless aligned with the Naturalists. ibid 75-76.

8 Stephen Guest, Ronald Dworkin (Jurists: Profiles in Legal Theory Series) (1992) 132-133.

9 Prince v President, Cape Law Society, And Others 2002 2 Sa 794 (CC).