Judicial Objectivity:

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?

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.