As every lawyer knows, words can be elusive; so much depends on shades of meaning. That’s especially true in legal philosophy, and it’s a truth that Associate Professor Jorge Luis Fabra-Zamora grapples with in a new volume.
Objectivity in Jurisprudence, Legal Interpretation and Practical Reasoning (Edward Elgar Publishing), which Fabra-Zamora co-edited with fellow academic Gonzalo Villa-Rosas, gathers essays from scholars worldwide on the meaning of objectivity in the law.
“Without the quest for objectivity,” the editors write in their introduction, “neither our contemporary understanding of key legal concepts nor our current jurisprudence would be possible. … But at the same time, objectivity in law raises several questions, some of which are far from simple: How can jurisprudence be objective? Are there objective answers to legal questions? Can vague legal concepts be interpreted in an objective way?”
They go on to note that the very definition of objectivity needs clarification: “Despite its apparent obviousness and everyday use, the meaning of this term seems to escape like water through the fingers when we try to define it.”
Fabra-Zamora, who has published widely on topics in legal philosophy, elaborated on the questions at hand in a brief conversation.
As an editor, how did you decide whom to invite to participate in the project and what they should write about?
In addition to flourishing philosophical literature on objectivity (e.g., Gaukroger, Dalston and Galison), there are excellent works about objectivity in legal theory, including outstanding monographs (e.g., Greenawalt, Kramer, Stavropoulos) and edited volumes (e.g., Leiter; Husa and van Hoecke). In this context, our goal was to create a novel and distinctive book that highlights the best current work on objectivity and law, representing a variety of currents of thought and highlighting avenues for further development. We were fortunate to incorporate a diverse group of researchers, including well-established and younger researchers from different legal contexts, who could address topics not only from a theoretical point of view but also themes directly connected with legal practice. Contributors were quite open to our suggestions, particularly our calls to provide the volume with internal consistency and the theoretical proposal suggested in the introduction.
You worked with a Colombian and German co-editor, Gonzalo Villa-Rosas, to produce this volume, and it draws from scholars based in many countries. Do European legal systems, for example, make different assumptions about judicial objectivity than the U.S. does?
One of the book’s central assumptions is that all legal systems as a whole, and individual legal applications in particular (i.e., a judge’s specific ruling), make implicit claims to objectivity. No community will endorse a legal system claiming to be arbitrary or biased in all instances, nor is a particular decision deemed legitimate if explicitly based on an officials’ bias or prejudices. Even biased and corrupt officials try to use mechanisms to present their decisions with some façade of objectivity. My co-editor Gonzalo Villa-Rosas, one of the world’s experts on objectivity in jurisprudence, has convinced me that the best way to think about this intuition is in terms of the legitimacy of law’s authority, which, in our culture, is based on rationality. That is, law’s authority claims to be rational. Since rationality implies objectivity, the law claims objectivity toward its subjects. And since the claim to objectivity is part of any authority presenting itself as rational, a claim to objectivity is shared by all contemporary legal systems independent of whether they assign a central role to legislation (civil law jurisdictions) or precedent (common law jurisdictions). Hence, the claim to objectivity is one of the shared assumptions that allow for theoretical dialogue among jurisdictions with different doctrinal concepts.
Objectivity seems like a laudable standard for the fair administration of justice, but is it even humanly possible? That is, can any system created and administered by human beings achieve an objectivity devoid of emotion and bias?
You have highlighted one of the fundamental problems that make our volume relevant. There is a traditional distinction between the rule of law, or community guidance by pre-existing rules, and rule of men, or community guidance by particular individuals. However, even in societies ruled by law, those laws are interpreted by fallible and biased individuals. If so, some critics and skeptics have wondered, is the rule of law possible? This is an interesting claim, but it is one susceptible to exaggeration.
As an illustration, consider the mundane example of exam grading. While it is evident that no professor is free from a certain degree of bias, this does not mean that universities are better off by flipping coins or randomly assigning grades. There is consensus about some criteria (most professors quickly distinguish an “A” paper from an “F” paper, even if they disagree on giving a “B” instead of a “B-plus”) and mechanisms that help reduce bias (blind grading, rubrics, etc.). Thus, we can reduce bias and increase objectivity even if “a view from nowhere” is impossible. This example shows how theoretical work on the concept of objectivity provides needed clarity and illustrates how a certain degree of objectivity is possible, when practitioners are committed, and how certain mechanisms can help diminish bias. These investigations also help show that, when legal officials have abandoned their claims of objectivity, they are no longer in the business of administering law.
History and journalism have over time embraced objectivity as a professional standard. As you look at the development of jurisprudence in the United States, is there evidence that courts have become more objective in their work?
It is the sociologists’ work to measure objectivity; it is the legal theorists’ work to determine what it means to say that courts are or have become more or less objective. The volume’s introduction develops two central jurisprudential insights that respond to the latter issue. On the one hand, we hold that a claim to objectivity is one of law’s constitutive elements. In the same way that a claim to objectivity allows us to distinguish history and journalism from propaganda (though nowadays it is increasingly difficult to draw the distinctions), a claim to objectivity is part of what will enable us to distinguish law from sheer domination.
On the other hand, before measuring objectivity, we need to know what it is. Unfortunately, jurisprudents are confused about what it means to be “objective” in the first place. Jurisprudential books mentioned above typically divide different “kinds” of objectivity, including “ontological” objectivity about what there is in the world, “semantic” objectivity about the language that represents that world, and “epistemic” objectivity about our knowledge of that world. Are these different kinds of objectivity related somehow, or are these different phenomena that happen to be called by the same word? We argue that these different kinds of objectivity share an essential connection and that the book’s chapters illustrate different facets of the same phenomenon. We’ll let the readers judge our success.
Lawyers and judges will be interested in how some of these insights might apply to their work. What implications do you see for legal practice from what your contributors have to say?
The book’s most direct practical applications concern objectivity in legal interpretation. One traditional concern is that judges use their own preferred meanings in determining the meaning of disputed words. However, as Caroline Laske discusses in chapter 9, recent developments in big data allow for an alternative: We can make computers review the corpus linguistics (bodies of text in natural language), so we can have a precise understanding of the word’s ordinary meaning. For example, if we want to know what the framers meant by a specific word in the 18th century, we can use big data to review all texts from that period and get a proper sense of the ordinary meaning of that word at that moment. Some judges have started using such a method with the hope that it provides more objective results. However, some of the results are controversial.
This dispute illustrates that attention to the “subjective”-“objective” dimensions of legal interpretation directly influences the outcome of cases. Yet, while some contributions also have direct practical implications, others attempt to illuminate the theoretical components of the claim to objectivity, including its epistemic, political and moral assumptions. This does not mean they are less relevant to practitioners, as these debates often loom in the backdrop of concerns that occupy lawyers and judges.