Law and impartiality: conclusion

Let us remind ourselves of legal theory’s concern over partial legal interpretation: it involves the use of preferences – controversial beliefs which do not appear to be true or false, so that the choice among conflicting alternatives appears unjustifiable as a matter of principle. We also said that this choice often appears to reflect the self-interest of the chooser; that the use of such beliefs as considerations in legal determinations can consistently benefit or injure certain individuals or groups; and that these considerations include a host of political, moral, and social beliefs whose relevance to many legal questions is beyond dispute. Thus, it is at least conceivable that such preferences play an inescapable part in legal interpretation – in which case impartial adjudication is an unattainable ideal. (We also said that the problem with preferences remains even if one admits, arguendo, that many of them can be characterised as true or false, as long as one concedes – as indeed one must – that these ‘truths’ are the subject of pervasive disagreements among reasonable and well informed people.)

As we saw, the understanding of law presented in the previous chapter does not rule out the use of preferences in proper legal interpretation: on the contrary, it argues that, under certain common circumstances, the duties of legal interpretation compel the legal interpreter to appeal to her preferences. Naturally, there are many considerations of preference which are excluded from proper legal decision-making (for instance, all those preferences which lack concreteness or publicness, or those which fail to justify the specific treatment for which they call); but often a legal interpreter will legitimately employ a consideration of preference while engaged in a perfectly valid legal determination. Valid legal determinations are sometimes partial. We must draw a distinction between wrong determinations and determinations which are legally correct but which could have come out otherwise. To be sure, this is no news for most legal theorists (and certainly not for legal practitioners); but different legal theories have radically different accounts of how preferences come into play in legal determinations, and different understandings about the pervasiveness of this phenomenon.