A critical analysis of objectivity in the legal sphere.

• Author: Bruschke, Jon

Objectivity has received a bad name. This presents a special problem to the field of law, and it is a problem that argument scholars are in a position to shed some light on. Setting aside the radical Critical Legal conclusion that the only consistent action is to do away with law altogether (for example, Gable, 1980), there is on the one hand the conclusion that, so long as a legal system exists, it is necessary that judges remain objective (Bennett, 1984). The reason is obvious. The point of law is to enforce justice. However, if judges are deciding on arbitrary bases, then justice cannot be served. But, on the other hand, there is the claim that objectivity cannot be obtained at all. What is to be done with the Critical Legal (and, before them, the Legal Realist) claims that "black letter" law does not constrain judges?

The challenge is to find a way to conceive of objectivity that recognizes both its necessity and its elusiveness. It is not enough to merely reassert outmoded assumptions about objectivity nor to viciously "trash" them without leaving adequate ground for social action. Instead, it might be more productive to try to understand how objectivity is constructed and what impact those constructions have on specified outcomes. A close reading of legal decisions is at least one useful vehicle to understand how judges are constructing their own definition of objectivity.

KEY CONCEPTS

Much of the present debate about objectivity may be confused by static definitions of the term which attempt to define it in a bifurcated fashion rather than in a way that explores its multi-form manifestations. Given this confusion, the search for objectivity ought to begin with a definition, and the process of definition should start by distinguishing three possible meanings. The first is the logical positivist definition, which assumes facts are "thinglike objects existing outside and independent of scientific observers" (Krippendorff, 1989, p. 69), that the facts will yield a single, universal truth (Krippendorff, 1989), and that we only "find" rather than "create" the conclusions. The counterpart in law is legal formalism wherein the law is a thinglike object, and judges "find" the correct decision and apply it to the facts of the case to produce a single, correct decision. Giddens (1989) concludes that these assumptions are "dead;" untenable for a host of reasons so vast as to defy a simple summary. Legal scholars and this author as well agree with Giddens' assertions. As early as 1921, Cardozo (1921/1964) declared the mechanical view of law a dead issue, a useless straw-person argument that had no function other than as a foil for the Realists. Schubert (1964) found no signs of life for the mechanical view four decades later, and Murphy and Tanenhaus (1972) reported that it was every bit as extinct as the dinosaurs in Michael Crichton's Jurassic Park.

A second possible definition is offered by Bennett (1984), who argues that judges are objective so long as they rely on the "use of sources for decision external to the decider's own (or subjective) standards or values, without necessarily insisting that those external sources be authoritative". Such a definition is at least more progressive but remains short of the mark because (a) it does not specify at all which standards are to be relied on, leaving the process "objective" but highly arbitrary, and (b) the distinction between those beliefs which are the judge's own and those which are external is blurry at best. Some impressive empirical research shows that judges are likely to rely on external standards which closely mirror their own (Nagel, 1963).

A third possible definition of objectivity is a consensual one. In this view, a concept becomes more objective when a consensus of informed opinions adhere to the idea. Sandmann (1991) has usefully described the idea as the application of field theory to law; Sandmann also correctly points out that such conceptions, although they have much to offer, do not really address the problems of objectivity but merely expand the circle of subjective arguments. Arguments are no longer subjective to individuals but instead are subjective to a field. Thus, objectivity is conceived of as a continuum, but still one that is bipolar in nature.

A more useful approach might be to create a flexible definition of objectivity that incorporates the notion that there may be various forms of objectivity. While objectivity may take on many shapes, and the pair offered below do not exhaust the possibilities, at least two types of objectivity deserve special notice. The first type is syllogistic objectivity, which requires no inferential leap in reasoning. Such reasoning traditionally includes a major premise, a minor premise, and a conclusion. The reasoning involves no inferential leap because all of the information in the conclusion is contained in the premises. Thus, the classical syllogism, "All men are mortal, Michael Jordan is a man, therefore Jordan is mortal," tells us nothing after the second comma that we did not know before it. Syllogistic reasoning has traditionally not concerned itself with the accuracy of the premises.

A second model, most notably championed by Stephen Toulmin (1958), introduced the notion of inferential leaps into logic. Rather than a major and minor premise, Toulmin saw arguments as containing "data" and a "claim," with a "warrant" connecting the two. The "warrant" was always an inferential move. Thus, an argument might take this form: "Jordan lost at golf before the basketball game (data) and that's why he played poorly (claim), because he can't separate his emotions from his game (warrant)." In this example, the conclusion is not necessitated by the data, and so an inferential (or "inductive") leap has occurred. Jordan might have had a bad game for other reasons.

Such inferential leaps offer one advantage over syllogistic objectivity. They allow one to consider the truth value of the premises. It is possible, for example, to contest the fact that Jordan had a sufficiently bad day to alter his jump shot, or to claim that Jordan's game is not influenced by his personal life. In fact, much of Toulmin's point is that such reasoning may be inferential, but not unsystematic. An approach using dialectical logic is one where all the premises are laid out along with their evidence and, in a series of moves which challenge all the various points, the issues may be considered in an inferential but comprehensive fashion which leads arguers to better decisions (Rescher, 1977; empirical support for the claim is advanced by Mitroff & Mason, 1981). When inferential leaps are used in such a manner, something termed dialectical objectivity is occurring.

Types of objectivity are conceptual categories, and there is no evidence that they actually characterize the way that judges make decisions. The present search for objectivity, therefore, centers around a primary research question: To what extent is judicial decision making characterized by syllogistic and dialectical objectivity? The answer should shed light on how objectivity is constructed in the legal arena. Since it is likely that both types of objectivity are present to some extent, it is appropriate to further ask: What factors seem to determine when each type of reasoning is present? The answer to this question will provide an explanation for why each construction is present.

This second question is formidable. Fortunately, there is an existing theoretical framework to deal with it. Several dialectical theorists (Buss, 1979; Minton, 1986; Rawlins, 1992; Reigel, 1979) have argued that individuals are constrained by society, but have the power to change it, and thus, with the understanding that individuals will deviate from the norms, an appropriate step for scholars is to identify the constraints under which individuals in general, and in this case judges, operate. Such a view has been labelled that of the "constrained social actor" (Anderson, 1987, chap. 9) or an "embeddedness" model (Clegg, 1990), where the individual is embedded within society, acting under its constraints and pressures, but is still free to behave proactively. Without claiming that these are the exhaustive constraints, this paper undertakes to identify the pressures that two particular constraints place on judges. The first pressure is publicity, or the amount of public attention given to a particular court case. A number of theorists have noted that public opinion may influence judicial opinions (Barnum, 1985; Drechsel, 1987; Hall, 1992; Nagel, 1983; Rieke, 1987; Rosenburg, 1992; Werling & Rieke, 1985), although none have examined the impact of publicity on constructions of objectivity. A second pressure is whether or not judges are elected to office or merely appointed, which has also had a demonstrable influence on judicial outcomes (Bradley & Ulmer, 1980; Nagel, 1963, 1964; Nelson, 1962). This constraint produces a type of accountability that might pressure judges in their decisions.

Finally, it is unclear what consequences each type of reasoning might have. Now that objectivity for its own sake has been eschewed, it is appropriate to ask a third and final research question: What outcomes are associated with each type of judicially contructed objectivity? In particular terms, one might ask how the legal issues are handled differently when judges use different types of reasoning and whether or not different decisions are reached.

THE ANALYSIS

Selection of Cases

Twelve criminal cases of the Utah Supreme Court were selected in a pseudo-random fashion, which is to say the cases were selected for no particular reason although there was no attempt to be systematically random. In 1985, the Utah Legislature switched from nonpartisan to retention elections (Utah Code Unannotated, 20-1-7.7, 1992; Constitution of Utah, Article 8, Section 9, 1953). Thus, judges sitting on the bench after 1985...