December 19, 2013

Tuh-mey-toh / Tuh-mah-toh.

Learning about the conceptualisations of legal reasoning and critical legal theories is absolutely fascinating to me.  As I was reading about the argument of formalism verse realism a lot of thought provoking questions came to mind:  Is a judge who bases a judicial decision or outcome on a personal bias, belief or intuitive or emotional response not inherently and innately human?  Can we really ever have a completely unbiased and neutral judiciary?  If we did, would this arm of power become unforgiving, indifferent and apathetic to the nature of humanity?

Personal experience is what moulds our individual characteristics and the way that we react to and assess situations.  While I do believe that an objective judgement is what is ultimately fair and just, if strict formalism was enforced upon legal reasoning, the judiciary’s requirement for statutory interpretation would be lost.  So there has to be some type of a balance and equilibrium.  Justice Michael Kirby puts it well when he states:

‘To pretend that the task is purely mechanical, strictly formal and wholly predictable may result in a few observers who love fairy stories sleeping better at night.  But it does not enhance the legal system.  It is not honest.  It is fundamentally incompatible with the creative element of the common law.’[1]

I like the view that the judiciary should aspire to take the objectivity from a formalistic process of legal reasoning and follow the rule of law as much as possible.  But I feel that consideration should be given to the realisation that it is likely that judges will at times make judicial decisions on policy choices, and the interpretation of the law is in their hands.  I think that judicial decisions may sometimes even be slightly favoured a certain way under the influence and bias of the sub-conscious.

Before delving in to legal studies, I did not realise how ambiguous the law could be and that so many different theories of what is ‘right’ were out there.  I really enjoyed the point made about the critical legal scholars who are of the view that ‘clear, fixed, stable interpretations of legal rules simply do not exist’, and there is ‘no such thing as a “legally correct decision”’.[2]  This legal theory also raised my awareness in regard to the fundamental contradictions within the legal system.  One example of a contradiction given in the textbook is that the law appears to be committed to a utilitarian approach of judgement, maximizing the overall wellbeing of society, and then also committed to the recognition and protection of individual rights.  Just some food for thought, I guess.

The information about postmodernism really caught my eye.  In particular the quote:

‘Postmodernism… insists that truth is made rather than found, and perceives reality as socially constructed.  This doesn’t mean that there is nothing “out there”.  The world is out there, but the ideas we form about it, and the things we say about it, are constructed by people.’[3]

Is truth subjective?  A person’s perception of truth certainly is.  This perception of truth is subject to our belief of what truth is, and that belief is usually greatly influenced by social conditions.  However, I do believe that there are undisputed truths out there.  Breaking free of social conditioning and exercising objective reasoning is possible, and necessary in the law.

The last thing I will mention that grabbed my attention was a view put forth by critical race theorists.  The textbook states that ‘[t]he insistence that everybody should be, can be or is treated equally by the law denies the unique voices of people from different races and cultures, voices that can and should be heard.’[4]  I do not think that there is such a thing as a universal ‘norm’.  Different cultures are going to respond differently to a judicial punishment.  Take for instance the recognition of customary law within Australia.  Our laws may not work for the Indigenous Australians and may even have a negative impact on the individual or their community.  Due consideration should certainly be given to these situations.[5]

It seems that everyone has an opinion as to how the law should be interpreted and enforced.  I am excited to find out how my opinions evolve throughout my studies and to learn how I can better equip myself to recognize the potential of the law to exact justice.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 379.
[2] Ibid 389.
[3] Ibid 391.
[4] Ibid 400.
[5] Ibid 103.