Introduction: law and impartiality

Introduction: Law and Impartiality

We all agree that judges must apply the law impartially. What do we mean by that? According to the dictionary, impartiality pertains to ‘equal treatment’: partiality is a bias, a slant, a bent; impartiality does not tend towards either side. These spatial metaphors are of limited value: a judge is to treat both sides equally – but in what way? Surely the resolution can hardly treat equally both sides. But then impartiality resides not in the resolution but in the decisionmaking process: we need to know the reasons leading to a resolution in order to assess whether partiality is an appropriate charge. A partial resolution is reached through a reasoning process that is skewed in some way. But then again, in what way?

To be partial towards something is to have a preference for it. Partial adjudication consists in giving preference to a certain person, or a certain group, or a certain interest, or a certain ideology, or even a certain moral position. Now obviously, a judge may prefer a person or a group or an ideology without being partial: a preference for an honest litigant over a dishonest one, or a preference for a democratic form of government, would not constitute condemnable judicial partiality. The sort of preferences which implicate the danger of partiality must be, in some way, unjustifiable.

Preferences can be unjustifiable because they are wrong; or they can be unjustifiable because they appear to be neither right nor