The Judge as Institutional Actor and Decision-Maker

Chapter 9

The Judge as Institutional Actor and Decision-Maker

Stanley Fish argues that contemporary thinking about law, as with thinking across all disciplines, has fallen victim to what he calls ‘theory–hope’. In the end, all ‘the troubles and benefits of interpretive theory … disappear in the solvent of an enriched notion of practice’ (Fish 1989: ix). According to Fish, all that theory can ever hope to do is offer an after-the-fact explanation of already firmly held beliefs which function to allow and confirm within an ‘interpretive community’ those convictions which its rhetoric asserts. The reason that we are able to interpret a text is because we belong to an interpretive community which supplies us with a particular way of interpreting it. Moreover, because we can never escape our communities our readings of a text are always in this sense culturally constructed. So we can never know of each other whether we belong to the same interpretive community, for that would require that each act of communication itself be interpreted. Thus, what is important is how an utterance affects a hearer, not any question about locating the meaning that is assumed to reside within it. In this way, arguments appear intelligible and convincing.

Fish’s response to Ronald Dworkin’s rendering of the process of constitutional interpretation, the judicial use of precedent, demands mention here. According to Dworkin (1986), the interpretation of the constitution, and therefore the role of precedent in judicial decision-making, can be likened to the production of a serial or chain novel, in which judges take turns consecutively to add one chapter upon another. With the steady accumulation of chapters each subsequent writer’s freedom and choice in interpretation becomes increasingly constrained: the author of the last chapter is more constrained in relation to that task than her fellow authors, since she has to contribute her chapter under the accumulated burden of their chapters; the first author is unconstrained.

For Fish, however, this understanding of what is going on is erroneous. A reader’s approach to a text can never be completely subjective. On the contrary, an internalised understanding of language shared by native speakers generates normative constraints in respect of their experience with language. In this way, Fish’s argument questions Dworkin’s understanding of the role and function of a doctrine of precedent. Indeed, for Fish, since all our attempts to gain access to the meaning of a text stumble on the fact that our interpretation is based upon the interpretive community of which we are a part, then a system of precedent cannot truly constrain judges; rather, constraints in judicial decision-making must arise out of the process of judging itself. Moreover, since all judges appear equally constrained, we are left with the question of whether, at any point in this process, there is really any text as such that awaits interpretation.

According to Balter (2001: 384), ‘Fish’s theory of interpretive communities provides valuable insight into the norms of the legal community’ and how the legal interpretive community ‘legitimizes a way of thinking about the law that is inculcated into its practitioners at each level of participation from law school through judgeship. Central to this socialization is the judicial opinion … studied by law students, read by lawyers, and written in respect to other opinions by judges’. In this manner, a judge ‘begin[s] the discourse with a particular case’ and ‘past cases are read in relation to the present circumstances’. While the legal community ‘expects that the present case will be understood in relation to the past, … the present case also moulds the past’. That is to say, a writer is free to manipulate a text on which her opinion is based, provided this manipulation can be justified within the bounds of the expectations of her interpretive community:

Interpreters are constrained by their tacit awareness of what is possible and not possible to do, what is and is not a reasonable thing to say, what will and will not be heard as evidence in a given enterprise; and it is within these same constraints that they see and bring others to see the shape of the documents to whose interpretation they are committed.

(Fish 1989: 98)

Tacit Knowledge and Socialisation: Understanding Interpretation

As we have characterised it, modern accounts of legal decision-making proceed on the basis of an assumption that a judge will look at an ordered sequence of events, produce a context-based arrangement of these showing the relations between them and make a judgement as to their significance in respect of that context or theory. In this judgement process, what appears as straightforwardly presented to the senses is subjected to our craving to re-order, re-arrange and re-design, to create new perspectives on knowledge and new knowledge. However, this attempt to see things differently and to disclose hidden meanings always takes place from within a particular standpoint or tradition. We draw distinctions against shared backgrounds, ‘forms of life’, ‘practices’ or ‘horizons of meaning’, where certain evaluative criteria are found to control, and we do so by bringing to the fore the parts we are interested in and ascribing significance to them. Training and practice allow us to produce ever more delicately balanced and nuanced distinctions and judgements until, over time, we acquire an ability to make judgements on the basis of very finely tuned accents and emphases. Polanyi makes this point when he describes the training of a medical student:

He watches in a darkened room shadowy traces on a fluorescent screen placed against a patient’s chest, and hears the radiologist commenting to his assistants, in technical language, on the significant features of these shadows … [H]e can see nothing that they are talking about. Then as he goes on listening for a few weeks, looking carefully at ever new pictures … a tentative understanding … dawn[s] on him … [E]ventually, if he perseveres intelligently, a rich panorama of significant details will be revealed to him … He still sees only a fraction of what the experts can see, but the pictures are definitely making sense now and so do most of the comments made on them.

(Polanyi 1962: 101)

This understanding is the result both of personal exposure to the material and of the specialised terminology that the student is taught to apply to it. What appears initially to preconceptual experience as a mere shadow is gradually processed through successive stages of revision and refinement, as the student relates his knowledge to the picture and to the words of his instructor. In this way, he progressively rearranges, reorders and redesigns his descriptions, and his descriptions of descriptions, recursively modifying and transforming every successive representation. Over time, newer distinctions are created and, as a result, so too is new knowledge.

We have found that a similar thing takes place in the legal context. For any judge to be able to discern a legally significant pattern of events from a collection of data, she must draw upon a collectively produced and sustained body of legal knowledge. This is because the significant categories implicated in her individual action as a judge derive their meanings from the ways in which they have been used within that particular form of life that we refer to as the legal community. For example, as a student of the law she learns how to recognise certain features of the law of contract because she is taught to use the category contract within a certain domain of action. Knowing how to act and judge according to law is assumed to be precisely this: learning how to make proficient use of the categories and distinctions that constitute the domain of law. In other words, judges, as students of the law, learn first of all, upon entering the legal sphere, to assimilate the distinctions appropriate to law; that is, they engage in a discursive practice and learn how to use its normative system to influence a course of events.

This capacity to exercise judgement derives from an understanding of context, and of having become knowledgeable in respect of the significance of certain acts within particular contexts, achieved as a result of having undergone a process of socialisation: we know how to recognise and do certain things because we have learned how to recognise and to do them. We have an awareness of the normative expectations relevant to them and an intuition of the consequences that follow from breaking these. We might say that our ability to exercise judgement comes in large part with our appreciation of theory, our ability to generalise a finding across contexts (cf. Bergson 1913). This application of a set of generalising principles across contexts involves judgement, and the capacity to do this is knowledge. So, when a judge applies a set of legal principles to a particular factual situation, she uses theory to generalise across contexts, which then becomes an additional basis for exercising judgement.

Judges apply rules in specific decision-making contexts. However, there is nothing within a rule itself that can fix its application in a particular case: ‘there is no “fact of the matter” concerning the proper application of a rule, … what a rule is actually taken to imply is a matter to be decided, by contingent social processes’ (Barnes 1995: 202).

Similar to Levi, Barnes argues that to follow a rule is to extend an example:

To understand rule-following or norm-guided behaviour in this way immediately highlights the normally open-ended character of norms, the fact that they cannot themselves fix and determine what actions are in true conformity with them, that there is no logical compulsion to follow them in a particular way. Every instance of a norm may be analogous to every other, but analogy is not identity: analogy exists between things that are similar yet different. And this means that, although it is always possible to assimilate the next instance to a norm by analogy with existing examples of the norm, it is equally always possible to resist such assimilation, to hold the analogy insufficiently strong, to stress the differences between the instance and existing examples. If norms apply by analogy then it is up to us to decide where they apply, where the analogy is sufficiently strong and where not.

(Barnes 1995: 55)

In this way, the application of a rule derives essentially from and contributes to a collectively shared meaning. But for this to occur, members of an institution ‘must be constituted as a collective able to sustain a shared sense of what rules imply and hence an agreement in their practice when they follow rules’ (Barnes 1995: 204); in other words, the justification or purpose beneath a rule needs to be made clear and its meaning integrated within the institutional collective. Law exists as an institution as a tightly related network of communications in and through which shared understandings are attained. On this view, it is institutional knowledge as the collected and collective wisdom or knowledge of the judges as a whole that enables each individual judge to put the sources of law to their respective uses and to develop and employ their own distinctive ways of thinking and acting.