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The Objectivity of Judicial Decisions

A Comparative Analysis of Nine Jurisdictions


Vito Breda

This book discusses how judges qualify their activities as objective. The data for this project was retrieved from a large sample of cases using Langacker’s methodology. The sample included over a thousand decisions from Brazil, Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain, Romania and the UK. The decisions considered allegations of judicial bias, unfairness, and injustice. Pre-judices are shared cognitive methods that legal practitioners perceive as necessary. The results of the study directly confirm Pierre Legrand’s claims of pre-judices in legal discourse, and as corollary, Jules L. Coleman and Brian Leiter’s idea of modest objectivity in law.

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Chapter 2 Truth and justice as qualifiers of the concept of judicial objectivity


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Chapter 2

Truth and justice as qualifiers of the concept of judicial objectivity

1. Introduction

This chapter discusses the use of terms such as justice and truth as qualifiers of the concept of objectivity in the judicial discourse. Saul of Tarsus, in Philippians 4.8, makes a direct connection between truth and justice. A Talmudic legal scholar identifies the lies of witnesses as the geneivat da’at: the theft of someone’s mind.164 The two qualifiers have different meanings, but given the penury of relevant uses reported in our sample of cases, they will be considered as two distinctive parts of a single chapter. Knowledge, and truth as a logical corollary, is one of Finnis’s virtues;165 in judicial discourse, truth, however, is mostly associated with procedural justice. So, truth is, in judicial discourse, a representation of the facts of the case based on a choreographed presentation of evidence. There are, however, substantial differences in different national legal systems. In England, for instance, there is a procedural assumption of validity for all evidence, even if it has been illegally obtained, that contributes to a truthful representation of the facts.166 In civil law systems, such as the Italian system, only legitimately obtained documents can be considered by the court.167 Again, the results support Legrand’s idea of national pre-judices.168 ← 59 | 60 →

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