Objectivity in legal judgment.

• Author: Feldman, Heidi Li

INTRODUCTION

We are experiencing a crisis of confidence in the idea of objectivity. In scholarly circles, many are ready to discontinue talk of objectivity altogether, on the grounds that it has been nothing more than a mask for the oppressive practices of politically and economically privileged groups, promising neutrality where in fact there are only power relations. Some feminist legal scholars, some critical race scholars, and some critical legal studies scholars, along with some contemporary philosophers, argue that objectivity is inevitably a problematic, dangerous idea or ideal. Critics of objectivity sometimes argue that it can never be genuinely had, only claimed under false pretenses and then used oppressively.(1)

On the strongest reading of their ideas, critics of objectivity insist that we entirely eliminate the idea of objectivity from our conceptual vocabulary. Different commentators base their insistence on different grounds. Feminist critics reject objectivity because, in their view, it is inextricably connected to male power and female subordination; purging objectivity from our conceptual vocabulary is prerequisite to the elimination of these evils.(2) Some philosophers claim that objectivity is, at best, chimerical, and that, at worst, it limits our capacity to imagine and create new and better moral and political lives for ourselves. According to these critics, abandoning objectivity would save us from both epistemological and ethical error.3

Other critics of objectivity condemn it less strenuously. They regard the idea of objectivity as dispensable, if not dangerous. According to some such critics, talk of objectivity tends to inhibit our thinking, curtailing arguments that ought to continue.(4) According to others, talk of objectivity makes us feel more constrained than we really are.(5) In either case, the idea of objectivity offers little in the way of positive power, according to these critics, and so relinquishing it imposes little cost.

Skepticism and cynicism about objectivity, especially objectivity in law, is not restricted to scholars. We find it among the general public, surfacing in reaction to controversial trial judgments, such as those reached in the Rodney King and Reginald Denny beatings trials, and in response to Supreme Court judgments on sensitive matters, such as abortion and voting rights. Contentious legal judgments invite doubt about the law's capacity for objectivity.

I take seriously concerns about the potential dangers of the idea or the ideal of objectivity and worries about whether objectivity is illusory. But objectivity is a very powerful idea, one that we could, perhaps, put to good use in criticizing what merits criticism and praising what merits praise. Before we abandon the idea or ideal of objectivity altogether, we should see whether we can elucidate it in a way that answers to that which seems worthwhile in the concept without including that which seems pernicious. This elucidation will enable us to gain a clear picture of the costs and benefits of retaining the idea and the ideal. Then, but only then, we will be ready to consider when, if ever, objectivity is a concept worth keeping in currency.

Popular understanding of science has given us one very simple conception of objectivity. According to this rather vague, prereflective conception, objectivity is a matter of correspondence to the world as it really" is, independent of our practices, goals, values, and beliefs. Objective judgments track this human-independent world. For those seeking objectivity in legal judgment, a problem emerges immediately upon consideration of this simple conception. The phenomena identified by legal concepts such as negligence, fraud, and rape are not like the phenomena identified by natural scientific concepts like proton or gravity. Negligence, fraud, and rape are not human-independent phenomena; they are constituted by our practices, goals, values, and beliefs. Legal judgments that apply concepts like negligence, fraud, and rape are not purely descriptive.(6) These legal judgments do not aspire to correspond to a human-independent world, free from our practices, goals, values, and beliefs. If we have only the simple correspondence conception of objectivity available to us, it would seem that we have to surrender the possibility of objectivity in legal judgment. Many legal judgments do not fit into this conception of objectivity at all.(7)

Nor would most legal judgments fit into a conception of objectivity suitable for wholly evaluative or purely normative judgments, judgments that apply concepts with little or no descriptive content. An example of a more purely evaluative concept is good; an example of a more purely normative concept is ought. These concepts apply appropriately under an extremely wide variety of factual circumstance, serving as all-purpose evaluative or prescriptive devices. Even though fraud and negligence have a negative evaluative flavor or component, it would be extremely odd to call torture fraud or negligence, whereas it would not be odd to call it bad. This is true because it will practically always be inappropriate, due to the descriptive dimensions of fraud and negligence, to apply these concepts to torture, even though it is practically always appropriate to evaluate torture negatively. Moreover, fraud and negligence do not negatively evaluate torture in an apt way. Due to the intricate interweaving of the descriptive and the evaluative dimensions of these concepts, they evaluate in distinctive and particular ways.(8) Bad, on the other hand, aptly negatively evaluates circumstances ranging from torture to spitting on a public bus. That is because its evaluative dimension is more general and less nuanced than the evaluative dimensions of negligence or fraud

We do not have a straightforward prereflective conception of objectivity for more purely evaluative and more purely normative judgments, as we do in the case of more purely descriptive judgments. But, because more purely evaluative and more purely normative judgments are less closely world-guided than the kinds of legal judgments I have been noting, it is prima facie unlikely that a conception of objectivity suitable for more purely evaluative or normative judgments would be suitable for more closely world-guided judgments, including the legal judgments mentioned so far.(9)

The situation confronting the defender of the idea or ideal of objectivity in legal judgment worsens. If neither the correspondence conception of objectivity nor a conception of objectivity suitable for purely evaluative or purely normative judgments is suitable for many legal judgments, what avenues remain along which to develop a suitable conception of objectivity for them?

I propose that we start by getting a better grip on the nature of the concepts that figure in so many legal judgments: concepts that seem to blend description and evaluation, which I will henceforth refer to as blend concepts. Not all blend concepts are legal concepts -- consider loyalty, rude, funny, or brutality.(10) If we could develop a conception of objectivity suitable for blend judgments -- that is, judgments that apply blend concepts -- we would arrive at a conception of objectivity suitable for many legal judgments: all those that apply blend legal concepts.

Twentieth century moral philosophers have devoted much energy and space to considering blend concepts.(11) Legal concepts do not figure in these discussions, despite the fact that legal scholars have noticed that many of these concepts exhibit the traits that drew philosophers' attention in the first place. 12 Neither philosophers nor legal scholars have carefully delineated the distinctive characteristics of blend concepts. Philosophers have not seriously or extensively addressed the question of whether such concepts are capable of objective application.(13) In legal scholarship, on the other hand, objectivity has been a major preoccupation, but the debates have not focused on the application of blend legal concepts.

This essay unites the philosophical concern with blend concepts and the legal concern with objectivity. Comparing blend legal concepts with other kinds of blend concepts develops our resources for ascertaining the distinctive characteristics of blend concepts. Cultivating a more refined understanding of blend concepts sharpens our inquiry into objectivity. In Part I of this essay, I explicate the distinctive characteristics of blend concepts, demonstrating that some representative legal concepts, drawn from tort law, possess these characteristics. In Part II, I develop a conception of objectivity suitable for blend judgments -- the blend conception of objectivity -- and use this conception to evaluate some representative blend legal judgments, including judgments of negligence, judgments of what is speech, and judgments of rape. Finally, in Part III, I situate my discussion of the objectivity of blend judgments in the context of legal scholarship regarding objectivity, using the blend conception of objectivity to diagnose some hidden problems in previous discussions of objectivity in law.

1. UNDERSTANDING BLEND CONCEPTS

   1. Distinguishing Blend Concepts

      When discussing issues raised by blend concepts, philosophers have considered concepts such as rude, courage, and gratitude.(14) Legal scholars have explored blend concepts such as crime, ownership, and State.(15) In both philosophical and legal scholarship, commentators proffer these concepts as categorically different from concepts that do not blend description and evaluation, such as red, water, or proton.(16) Yet it can be difficult to formulate a principled, illuminating delineation that will include the former but exclude the latter.

      Philosophers' and legal scholars' efforts in this direction tend to be overinclusive, underinclusive, or both. Bernard Williams, for instance, discusses "thick concepts"; he...