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Judicial Objectivity:

Limits, Merits and Beyond

by Lidia Rodak (Author)
Monographs 234 Pages
Series: DIA-LOGOS , Volume 28

Summary

The book poses the fundamental question of what objectivity means in practical legal discourse and what is its role. By applying critical discourse analysis to the applications of the term “objectivity” in judicial discourse – based on cases from Poland – the book identifies a rich taxonomy of objectivity’s uses that judges make of the concept of objectivity. The main results are that objectivity has a special meaning in the legal discourse based on legal authority, and that a case can be made for a stronger interconnection between objectivity and intersubjectivity. These results challenge the theoretical foundations of the debate on objectivity in the legal discourse and open new perspectives for the justification of this concept in modern societies.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Introductory Remarks
  • i. Methodology and Theoretical Perspective
  • ii. The Structure of the Book
  • Chapter I The Conceptions of Objectivity
  • 1.1. The Realism vs Antirealism Debate
  • 1.2. The Typology of Objectivity with Regard to the Object
  • 1.2.1. Persons Recognized as Objective
  • 1.2.2. Objectivity of Different Types of Statements
  • 1.2.3. Objectivity with Respect to Knowledge
  • 1.2.4. Elements of Empirical Reality: Objectivity of the External World and the Ontology of Brute and Institutional Facts
  • 1.3. The Explanation of Objectivity with Regard to the Subject’s Determination
  • 1.3.1. Overcoming the Subjective Perspective
  • 1.3.2. Rejecting the Influences of Individual Elements
  • 1.3.3. Esse Obiectivum
  • 1.3.4. Forms of Expressing the Essence
  • 1.3.5. The Dichotomy Given to the Subject
  • 1.4. The Explanation of Objectivity with Regard to Intersubjectivity
  • 1.4.1. Intersubjectivity and Communicative Context
  • 1.4.1.1. Wittgenstein’s Argument
  • 1.4.1.2. ‘Thought Communities’
  • 1.4.1.3. Intersubjectivity as Agreement/Disagreement
  • 1.4.1.4. The Emphatic Communication
  • 1.4.2. Epistemological Intersubjectivity as a Condition for Knowledge Creation
  • 1.4.3. Proximity of Objectivity and Intersubjectivity
  • 1.4.4. Separation of Objectivity and Truth
  • 1.4.5. Conclusions
  • 1.5. The Characterization of Objectivity Due to Its Different Extent/Gradation
  • 1.6. Objectivity and Truth/Correctness/Validity
  • 1.6.1. Objectivity as not Equal to Truth
  • 1.6.2. Objectivity Versus Correctness and Validity
  • 1.7. Universality
  • Chapter II Objectivity in Law Versus Objectivity of Law
  • 2.1. Is Objectivity Fit for Law?
  • 2.2. The Objectivity of Law
  • 2.3. Objectivity in Law
  • 2.3.1. Metaphysical Objectivity of Law and in Law
  • 2.3.1.1. M. Kramer’s Conception
  • 2.3.1.1.1. Mind –Independence
  • 2.3.1.1.2. Determined Correctness
  • 2.3.1.1.3. Uniform Applicability
  • 2.3.1.2. J. Coleman’s and B. Leiter’s Conception
  • 2.3.1.2.1. The Strong Objectivity
  • 2.3.1.2.2. The Minimal Objectivity
  • 2.3.1.2.3. The Modest Objectivity
  • 2.3.1.3. Summary
  • 2.3.2. Epistemological Objectivity of Law
  • 2.3.2.1. Methodological Conception of Legal Objectivity by G. Postema
  • 2.3.3. Semantic Objectivity of Law
  • 2.3.3.1. Kripke-Putnam Semantic Theory
  • Chapter III Analysis of the Jurisprudence of the Court Rulings
  • 3.1. Introduction
  • 3.1.1. Basic Meanings and Families of Meanings
  • 3.2. Methodology: Discourse Analysis
  • 3.2.1. Critical Discourse Analysis
  • 3.3. From the Analysis of the Jurisprudence of the Court to Classification of the Meanings of Objectivity
  • 3.3.1. The Subject-Determined Camp of Objectivity (A)
  • 3.3.2. The Object-Determined Camp of Objectivity (B)
  • 3.3.3. The Intersubjective-Determined Camp of Objectivity (C)
  • Chapter IV Objective Judgments and General Clauses
  • 4.1. The Notion of General Clauses in the Context of Judicial Discretion
  • 4.2. Some Examples from Justifications of Legal Decisions
  • 4.2.1. General Clauses and the Objective Point of View
  • 4.3. General Clauses as Individual Measures
  • 4.4. Models and Patterns of Behaviour as an Objectification Process
  • 4.5. The Concept of ‘Reasonable Person’
  • 4.5.1. Reasonable Person in International Law
  • 4.5.2. The Polish Example
  • 4.5.3. English, German, and French Examples
  • 4.5.4. Common Law Tradition
  • 4.5.5. The Notions of Objectivity in Interpretation of Contracts: a Summary
  • 4.5.6. Reasonable Person or Reasonable Man?
  • 4.6. The Observed Aim of ‘Objective’ General Clauses
  • 4.7. From the Judges’ Point of View
  • Chapter V Objectivity of Legal Facts
  • 5.1. The Definitions and Various Types of Legal Facts
  • 5.1.1. Facts Determined Descriptively
  • 5.1.2. Facts Determined by Evaluation
  • 5.2. Objective Legal Facts according to the Polish Judicature
  • 5.2.1. Facts Extracted by Description
  • 5.2.2. Facts Extracted by Evaluation
  • 5.3 Narrative and Normative Coherence of Law
  • 5.4. The Relation Between Brute and Institutional Facts
  • 5.5. The Relation Between Facts and the Paradigm of Interpretation
  • 5.6. Objectivity of Legal Facts: Semantic Reflections
  • 5.6.1. Meaning
  • 5.6.2. Wittgenstein and Kripke
  • 5.6.3. Kripke’s Sceptical Position
  • 5.6.3.1. Kripke’s Non-Sceptical Interpretation of Wittgenstein
  • 5.7. Objectivity of Legal Facts
  • 5.7.1. Legal Definitions
  • 5.7.2. The Semantic Theory of Kripke and Putnam
  • Chapter VI Conclusions
  • 6.1. The Ceremonial Function of Legal Objectivity
  • 6.1.1. The Analysis of the Style of Objectivity as Performing the Ceremonial Function
  • 6.2. The Relationship Between Objectivity and Subjectivity
  • 6.3. Does Intersubjectivity Fit the Law?
  • Bibliography
  • Name Index
  • Series Index

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Introductory Remarks

It is not necessary to regard everything as truth but it is enough to perceive it as necessity before law.1

The topic of objectivity is one of the most controversial in the jurisprudential literature, as the numerous publications on this issue show, with defenders and critics of both the concept of objectivity in general and of legal objectivity, in particular. By looking at these debates, one can think that everything has been said on this topic and, consequently, conclude with Ronald Dworkin that there is no need to talk about objectivity anymore.2

Objectivity is often entangled in the interpretative paradigm and often, deliberately or not, serves as an epistemological perspective. Therefore, most often objectivity becomes the subject of attacks from the perspective of anti-realist or so-called critical positions today. At the same time, however, realistic and naturalistic school of thoughts consider it a fundamental category.

For this reason, this book starts with discussing the arguments presented by opposite views on objectivity from both the perspective of philosophy and philosophy of law. This is to prepare the ground for the discourse analysis of jurisprudence of the courts, in order to understand the apparent ambiguity and inconsistencies in the ways objectivity is used in the law courts.

The overall aim of this book is to identify the usages of objectivity that appear in practical legal discourse, and critically examine them to verify the hypothesis that a special legal meaning of objectivity is created bottom-up by the practical discourse itself. In addition, the results of this research allow to shed new light on objectivity in its relationship with intersubjectivity and subjectivity, in particular with the subjects of law in the legal discourse.

The inspiration for this book came from observing the different ways in which the term ‘objectivity’ is used in court rulings, as this begged the question of what ←9 | 10→objectivity actually means in the legal world and what its function is. Why is it so popular in the discourse of judges? What is behind it?

The discourse analysis proposed in this book shows how highly controversial this term is in the process of applying the law. Objectivity is used in many different contexts, which generates different meanings in use, very often contradictory and, sometimes, even against our common intuition of how to use this term. By observing the large number of cases where this term is used simply for its argumentative reasons, one might find it tempting to join the camp of radical critics of legal objectivity and try to identify the power relations hidden behind it. However, the theoretical considerations point out the many types of objectivity which can be ranked according to their force, such as minimal modest and strong objectivity. In addition, they highlight the capacity of objectivity to guarantee certainty, transparency, common acceptance, universalism, equity before law and, in a certain sense, democracy. At the very basic level of legal assumption, objectivity provides the values that constitute law like legitimacy, justification, and its power of authority.

This is the framework for the analysis proposed in this book, where tension appears between practical confusion and what seems a devaluation of the term objectivity on the one hand, and the theoretical necessity to think of law as objective, on the other. By carrying out a critical discourse analysis I reconstruct what could be the reasons for using objectivity in a given context and look at what is behind a given usage. By analysing a variety of meanings used in different legal contexts, I also examine whether there is any special meaning that could be constituted by the legal context and characteristic only for it.

This is the most important aim of carrying our discourse analysis, as mentioned above: to verify whether the practical legal discourse generates its own bottom-up legal objectivity, what it can actually mean, and what can be the results for subjects of law.

However, it is also relevant to understand whether the practical usage of objectivity in the legal discourse is only a chaotic battle of opposite epistemological perspectives applied consciously or not by judges, or there is something more: that the discourse of law, thanks to its performative power generates the conditions for the emergence of certain type of objectivity, which is arbitrary and power-related. The great argumentative power of objectivity indeed may profit from ontological assessments of realism and may open up opportunities to create inequality and exclusion in the legal discourse. This is especially dangerous from the perspective of an authoritative legal body, which creates a legal reality using language.

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i. Methodology and Theoretical Perspective

I have carried out research on both a theoretical and a practical level. On the theoretical level, I take mainly an analytical approach. In particular, I begin by describing the main approaches and concepts which are necessary to understand the complexity of objectivity. This is set against the philosophical debate about objectivity from realistic to antirealist and postmodern concepts. The realists’ and antirealists’ debate about objectivity, together with different approaches to legal objectivity – strong, modest or minimal – are crucial to analyse the practical legal discourse.

The theoretical perspective provides the tools for carrying out the discourse analysis. In particular, I adopt the methods of Critical Discourse Analysis (CDA). First of all, the theoretical perspective provides the framework for the discourse analysis, especially to investigate discursive practices, their intertextual relations (for example between doctrinal and judicial discourse), the institutional practices or the involvement of human aspects, which are fundamental to analyse objectivity. For example, to find out whether it is justified to make claims about different types of object and to understand the difference between the objectivity of facts, evaluations, and legal decisions. Secondly, the theoretical analysis points out the relevance of the inter-subjective dimension of objectivity in the legal discourse. Such a perspective, as I argue, is almost invisible at the level of practical analysis.

In my analysis, I only take an epistemological perspective, as this is the most relevant for the legal discourse, and essentially the only one present in judges’ considerations. In addition, I do not adopt a comparative approach: if I use some examples from different legal systems to show differences in the perception of objectivity, it is only for illustrative purposes.

The main tool to carry out the discourse analysis, which is the core of my analysis of the practical dimension of objectivity, is the method of CDA by Norman Fairclough,3 who proposed a ‘three-dimensional model’ for the qualitative analysis. The main aim of the application of CDA is to create the list of the usages of objectivity in the legal contexts and analyse them to understand if legal objectivity is generated by the discourse itself, what this means, and what are its consequences for the participants to the discourse.

As the aim of CDA is to find out what are the meanings of objectivity that are used in legal practice, the theoretical foundations of the adapting of ‘three-dimensional model’ of Norman Fairclough in the form of classifications of the ←11 | 12→meanings of objectivity are the following. The analysis does not start from the semantic level but from the practice of usages, as suggested by the concepts of ‘open texture’ formulated by Hart and Waismann.4 Such an approach allows to identify the examples of the practical usages of objectivity and create a list.

However, starting from the semantic pre-organized layer of meanings one can only find meanings which have been already nailed down. To circumvent this problem, one can follow the approach of Langacker, who suggests that instead of perceiving expressions as containers of meanings, one should focus on the symbolic correspondence between the phonological and the semantic structure, which corresponds to the ‘term vs. concept’ opposition.5

Following this approach, by analysing a usage, it is possible to detect non-standard senses of a given word or expression. This allows to describe the whole family of meanings of objectivity, using Wittgenstein’s terminology.

In this book I mainly analyse Polish law,6 in particular by analysing courts’ ruling in Lex, the Polish System of Legal Information. The large quantity of verdicts using the term objectivity is a ready source of data for analysis and a proof of how willing judges are to use the term objectivity.

ii. The Structure of the Book

The structure of the book is the following: Chapters 1 and 2 introduce the theoretical discussion on objectivity. The central part of the book is the discourse analysis which is presented in Chapter 3. Chapters 4 and 5 focus on two specific problems found in the practical discourse analysis: general clauses and legal facts. In Chapter 6, I draw the conclusions of the discourse analysis. In particular, I describe the ceremonial function of legal objectivity, present some reflections on the relationship between objectivity and subjectivity and, finally, I analyse the key question of why intersubjectivity can fit the law.

Chapter 1 describes the philosophical debate on objectivity. Far from being an exhaustive survey, this chapter proposes a single typology that embraces all the meanings found during my research. This is based on whether objectivity ←12 | 13→is regarded as being determined by subject, object or it is intersubjectivity-determined. In this way, I tried to take into account the possible ambiguity of ‘objectivity,’ as it is very easy to get lost in the vast maze of propositions on the meanings and concepts of objectivity. To quote R. Rorty, ‘the long and very rich tradition of defending and attacking objectivity makes the attempt of overcoming this problem an unsolvable battle.’7

The background of philosophical debate between realists and antirealists about objectivity guides this research. All the concepts analysed, are divided into three groups depending on whether they are determined by the object/the subject or whether they are determined by intersubjectivity. In particular, they are classified with regard to persons, type of statements, knowledge, elements of empirical reality, and values. The subject-determined camp presents the opinion that objectivity is dependent on the author and the context, but to different extents. This leads to the graduated schema, introducing objectivity in its strong, modest and minimal versions, depending on the degree of the subjects’ involvement. This classification allows for the analysis of both the relations between those notions and with other concepts related with objectivity, such as truth and universality.

The conclusion of this chapter that guides the theoretical considerations and the analysis of the practical cases of the chapters that follow, is that the realists’ approach, which identifies objectivity with truth is the most problematic. The connection with truth is the most common and, in my opinion, the most misleading implication. Objectivity embodies truth only in radical strong approaches that conceptualize objectivity in a way more based on the naive worship of a certain vision of law than on any other form of argument. That is why it is difficult to support strong approaches to objectivity, especially in the domain of law. The empirical research will just confirm this: the courts’ use of objectivity in the sense of truth is one of the largest groups of meanings, and the most controversial.

Chapter 2 deals with different conceptions of objectivity in the domain of law. The analysis goes under the banner of questions such as: is objectivity fit for law?; is this concept characteristic for law?; has law its own concept that could be called ‘legal objectivity;’ and, finally, do we need objectivity for law? The presentation introduces the critical camp and the defenders of legal objectivity. The first represents the opinion that objectivity is a hypocritical notion and should ←13 | 14→be completely rejected. The critics claim that it does not fulfil its prescribed role and that it is too easy to smuggle in inequity and injustice under the banner of objectivity. The defenders either argue that law could not be thinkable without the idea of objectivity or directly identify law with objectivity.

My analyses firstly distinguish between objectivity ‘of law’ and objectivity ‘in law.’ After an overview of this typology, I will then focus on three approaches to objectivity in law: the metaphysical, epistemological and semantic levels.

Metaphysical objectivity of law could be considered in terms of mind independency, determined correctness, and uniform applicability with regard to legal norms (M. Kramer’s proposition). Another approach could be analysed from the perspective of the possible objective status of legal facts (J. Coleman’s proposition). These two approaches could be settled in the context of the realism vs. antirealism debate and the graduated typology introduced in the first chapter. It is possible to qualify Coleman’s approach in the middle, as representing the modest version of objectivity. Kramer would be counted in the antirealist camp, representing the idea of minimal objectivity, mainly because of his conventionalist approach to law, which is based on an internal legal narrative.

Biographical notes

Lidia Rodak (Author)

Lidia Rodak is a Lecturer of Sociology and Philosophy of Law at the University of Silesia in Katowice, Poland. Her main research interests are objectivity and subjectivity in the socio-legal discourse and feminist jurisprudence. She published her works in The Hague Journal on the Rule of Law, Oñati Socio-Legal Series, Studi sulla Questione Criminale, and Peter Lang.

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