By Daniel Benson Kaaya
Do judges always apply the law to the facts in question to arrive at a sound or judicious determination? What if the law in question conflicts with his/her dispositions? These, among other questions about how a judge’s prejudices affect the aftermath of a judgement or ruling is the idea that informs the dialectical variance between the theories of judging – formalism and realism. Customarily, a judge is either a realist or a formalist.
Formalist judges apply the governing law to the facts of a case in a logical, mechanical, and deliberative way. For the formalists, the judicial system is a “giant syllogism machine” and the judge acts like a “highly skilled mechanic”. Legal realism, on the other hand, represents a sharp contrast. For the realists, the judge “decides by feeling and not by judgment; by ‘hunching’ and not by ratiocination”, and later uses deliberative faculties not only to justify that intuition to himself, but to make it pass muster (Guthrie, C.; Rachlinski, J.J.; Wistrich, A.J. Blinking on the Bench: How Judges Decide Cases. Cornell Law Review 2007,93:2).
In an artless language, formalism is an ostentatious theory of judging, whereby a judge applies the law to the facts of the case. It refers to the view that judging is a rule-bound activity. Non-legal rubrics have little or no bearing on the upshots of cases. Therefore, the courts are huge syllogism machines, operating by mechanical deduction. It is also referred to as mechanical jurisprudence, according to Cesare Beccaria. Formalism owes much of its existence to the notion of law as legal science. This school of thought views law as a rational, gapless, complete and almost geometrical system.
Formalist judges are mostly found in jurisdictions where the jurisprudence is stagnant. These are intellectually regular judges. For example, in most African countries, it is difficult to identify a school of thought that a judge subscribes to. This is informed by the fact that most of them are shackled by the prevailing tenets of law, and cannot think beyond the voluminous books they consume!
This is why it is normal to hear outrageous decisions like an 80-year old being jailed for contempt of court. The justification the magistrate will offer is she contravened a law. However, is it logical to sentence an octogenarian to six months in prison given the state of our prisons (they are not correctional facilities; modestly gulags), or even the fact that they might have unknowingly done so?
The conservative nature of our jurisprudence is attributed to the extreme formalistic approach applied by our adjudicators. When an American Supreme Court Judge (Antonin Scalia) died in mid-February, the media (American media, mind; our media, which worships politicians instead, cannot engage in this heavy duty discourse) and fellow justices eulogised him as a transformative legal theorist. The Justice had left the Americans a jurisprudential compass. Can we summarise the contribution of our judges as such, given their mechanical approach? Judges and magistrate ought to augment the law with their decisions and academic texts.
The natal of legal realism is principally credited to the jurist—Oliver Wendell Holmes, Jr. Holmes wrote: “the life of law has not been logic; it has been experience.” He essentially reasoned that changes in law were not due to logic or pre-existing law; instead, policy preferences or personal experiences of judges counted for more.
According to F. Schauer, author of Thinking like a lawyer: A New Introduction to Legal Reasoning, when it comes to judicial decision-making, realists have two general theses. “First, judges have a preferred outcome of a case even before they turn to legal rules; that desired outcome is usually based on non-legal grounds—conceptions of justice, attributes of litigating parties (government, poor plaintiff, racial group, etc.), ideology, public policy preferences, judge’s personality, etc. Second, judges usually will be able to find a justification in legal rules for their anticipated outcome”. This is probable because a legal system is complex and habitually contradictory.
Another name to conjure with in realism is Benjamin Cardozo, who was not only an outspoken legal commentator but also a prominent judge. Thus, his position gave his views on realism bonus credibility and reliability. In his treatise “The Nature of the Judicial Process”, he observed that in most cases, there are clear legal principles that dictate the outcome. Yet, often, a clear legal answer does not exist; in such cases, Cardozo thought, the judge should promote social ends; and here, Cardozo admitted, a judge may be tempted to substitute his views for that of the community of law.
Theodore Schroeder, in analysing the psychology of decision-making, in his book, The Psychologic Study of Judicial Opinion, noted that “judicial opinion necessarily is the justification of the personal impulses of the judge”, and that “the character of these impulses is determined by the judge’s life-long series of previous experiences, with their resultant integration of emotional tone.” In artless language, again, realism simply refers to considering other dynamics other than promulgated legal rubrics. The legal documentations and canons are just applied to rationalise or authenticate the anticipated outcome of the case.
Do judges consider public opinion to arrive at a legally informed determination? In other words, does public opinion play a role in decision-making? Where does public opinion fit in these two theories?
But public opinion cannot simply be wished away. In some instances, it can shift or inform a judge’s decision. Therefore, public opinion, considerably, is an imposing factor in informing a determination in a court of law.
Does public opinion count?
Scholars may diverge in many respects regarding public opinion. They generally settle on four conditions that are indispensable to the formation of public opinion: the existence of an issue; a significant number of individuals expressing opinions on the issue; some kind of consensus among the opinions; and the influence of this consensus (Encyclopaedia Britannica). In the political province, the “will of the people” (though we generally know it is the will of their stomachs and pockets) is generally used to express the same idea.
Pundits have amassed considerable evidence that public opinion pressures judges’ decision-making and elite partialities imprison their exercise of judicial review. For example, in June 2012, the U.S. Supreme Court issued its landmark decision in the Patient Protection and Affordable Care Act case, famously known as Obamacare. In the months leading to the ruling, President Obama and Congressional Democrats steered a pressure campaign on the court, opining the Justices to uphold the Act. Despite these efforts, the justices asserted they were invulnerable to external pressure. Three months later, Chief Justice Roberts unpredictably joined the liberal wing of the court and voted to uphold the health care law.
Arguably, there have been discussions that the decision of the International Criminal Court on the Kenyan case of post-election violence was influenced by both public pressure and opinion. That is, if African Union had not publicly criticised the modus operandi of the court and the purported discriminative picking on African countries, the court would have arrived to a different decision. It’s worth noting that public opinion forces a judge to rule otherwise other than it is supposed in law.
For a concept to be measured formalistic, it must have a habitation in a promulgated law or set of tenets of a particular jurisdiction. This is informed by the fact that a decision is dignified formalistic when it has been decided on the publicised law. In most jurisdictions, the influence of public opinion is not documented; this is because the public only develops interest in the upshot of a case in very few cases. However, it has found its place, to some extent, in international law or has informed international law making.
The archetypal illustration is the Mertens Clause in the preamble to the 1899 Hague Convention (II): “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protections and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of public conscience.” Public conscience herein can be equated to public opinion.
On the other hand, realism as a theory of judging does not require a factor that informs a decision to be in law. Since most jurisdictions have not assimilated public opinion in their laws, a realist judge may take public opinion into account while deciding a case.
Realism vs formalism
In most African countries laws on homosexuality are either not clear-cut or non-existent. However, it’s difficult to find a judge deciding in favour of a homosexual in situations where the behaviour is in question. This is educated by the fact that the African public loathe the behaviour. That detestation is the public opinion. The issue is homosexuality, and there are a significant number of individuals (community) expressing opinions on the issue. There is consensus that homosexuality is debauched; consequently this consensus has influence.
In conclusion, it can be thought that public opinion, as a factor of judging, is less of formalism and more of realism. In another light, it can be argued that realism may later transmute to formalism. Thus, realism is a precursor to formalism.
Take the example of judicial precedents, which are, banally, part of law. A decision that is reached through the prism of realism, for example, public opinion if not per incuriam or is still a lucid statement of law, can be adopted by a judge in a factually analogous case. This establishes that public opinion may take either front contingent on the circumstances surrounding the case.