Judgment

New Trajectories in Law

Thomas Giddens

• Editorial: Routledge
• Año: 2022
• ISBN:
  9781000575156
• Edición: 1
• Categoría: Droit
• Categoría: Théorie et pratique du droit

Judgment is simple, right? This book begs to differ. Written for all students of the law—from undergraduate to supreme court justice—it opens the reader to a broad landscape of ideas surrounding common law judgment. Short and accessible, it touches upon the many pathways that lead out from the phenomenon of judgment in common law jurisdictions. This book is unique in its brevity and scope. It engages not only with the core operation of judgment as legal decision, but considers questions of authority and reason, and broader issues of interpretation, rhetoric, and judicial improvisation. The aim of this book is not to present a summary of research or a comprehensive 'theory' of judgment, nor is it bounded by the divisions of different legal subjects. Instead, it is a handbook or companion for students of the law to read and return to in their studious journeys across all common law topic areas, providing readers with a robust and open-ended set of tools, combined with selected further readings, to facilitate their own discovery, exploration, and critical analysis of the rich tapestry of common law judgment.

1 Legal decision

DOI: 10.4324/9780429329784-1

A judgment is a legal decision. It is the words or outcome given by a judge in a particular case. It supposedly signifies the end or resolution of that case. In this sense, a judgment is an ending; it draws a line under the dispute or question at issue so everyone can move on. This is perhaps the most common-sense understanding of judgment on a practical level, particularly for lawyers and other students of the law. A judgment is the decision in a legal case, which (if significant) is then reported and compiled with other judgments into law reports. Before we move to think about some other understandings of judgment in subsequent chapters, it is important to dwell in a little detail on this ‘standard’ model of judgment for law.

We will begin by considering the ways in which judgment operates as a resolution to individual disputes (section 1.1) before considering how this process results in the general principles of the common law in the doctrine of precedent (section 1.2) and, eventually, the general emergence of the common law that derives from the accumulation of individual decisions (section 1.3). Along the way, we will also note how the idea of judgment as legal decision opens up to some of the multiple perspectives explored in later chapters.

1.1 Resolution

Judgments draw proceedings to a close, end disputes, bind parties, hold villains to account. While appeals may take place, these avenues eventually run out (either with the highest court in a jurisdiction or with an international court, such as the European Court of Human Rights), and a final judgment will be given. Indeed, most cases do not appeal, and the judgment at first instance is also the final one. This ‘final’ quality of judgment is part of its practical function in a legal system. It also leads to questions about the authority of judgment, as well as concerns about justice, the role of the legal system, and the values or ideals that underpin that system. The question of authority has its own chapter (see Chapter 2), so in this section we will instead focus briefly on the role of resolution within the legal institution and as part of its wider social context of operation.

One way to think about the nature of judgment as resolution is to consider the distinction between vengeance and retribution. This is quite a well-trodden area of debate (we will discuss it some more in Chapter 2), but it illustrates something of the institutional nature of a legal decision and how this can break cycles of disagreement between parties.

Most disputes do not end up in court with a legal judgment to resolve them. Things can be settled informally (one way or another) between the parties concerned, or soft-law options can also be used, such as mediation or arbitration. Resorting to a judicial court to resolve a dispute, to attempt to right a wrong or achieve some sense of just closure, is often the last resort. Indeed, this is how courts seek to position themselves so they are not overburdened. And, in many cases, the threat of court proceedings can be enough to get things sorted without a court ever being involved (for example, the threat of a lawsuit might stop a party from continuing to breach a contract or ensure an organisation provides adequate safety procedures for their products and services).

A judgment issued from the legal system—perhaps more so if included in a law report—can thus have various effects, both specific to a case and also to society more widely. For particular cases, a judgment ideally acknowledges the grievances of each party involved and provides a practical solution, be it the redistribution of loss through compensation, prescriptions for parties to behave in a particular way (e.g. to adhere to a contract or maintain the status quo), or the imposition of punitive measures (e.g. punishment for crime, which is a dispute between the state and an individual). There may also be some direction given on possible policy changes that would affect parties beyond those involved in the case being decided. But for the individual parties, it is the words of the judgment—backed up by state or legal authority (see Chapter 2)—that arguably enable law to have its effects.

More broadly, having recourse to this method of solving disputes may also serve to reduce a culture’s reliance on methods of revenge and violence and, as mentioned above, can serve as a ‘guarantee’ for softer options, such as arbitration, that can be backed up by court involvement if their outcomes are breached. It is by instituting an authoritative mode of adjudication that the legal system short-circuits interpersonal disputes or harmful retaliation. A judgment represents the official statement of the parties’ rights and relations and so ends the matter at hand and draws the dispute to a close. Moreover, it does this by positioning the giving of such judgments as unbiased: that is, as fair, just, and reasonable as between specific parties (e.g. citizen and citizen in civil cases or citizen and state in criminal ones) and thus as authoritative, binding, and legitimate. In the adversarial systems that are characteristic of the common law, the court has hearings—it listens to each side of the story, each gets their ‘day in court’—and it makes a balanced and unbiased judgment in relation to them. This fairness may (also) be determined in relation to wider and often somewhat amorphous concerns of public policy.

This may be a relatively familiar or instinctive notion of judgment. It does not guarantee, however, that parties will be satisfied with the outcome or agree that it is just or that the decision is actually neutral or unbiased in all senses—the existence of appeals and critical discourses of the media, politics, and legal studies are testament to that, not to mention the vagaries of moral philosophy.

Indeed, it is important to note that law is not simple and clear-cut and is actually inherently uncertain and requires analysis and construction to establish its principles and meaning. If law had correct answers that could be easily discovered, there would be no need for lawyers, judges, or courts at all. This feature of law thus means there is arguably always a deeper question over what ideals or values the legal institution instils through its ongoing processes of judgment. These questions include concerns over how these processes operate and the sources, grounding, and limits of their authority. Resolving disputes between specific parties is far from everything that judgment is and far from everything that it involves—as we will explore together across this book.

1.2 Precedent

Even as a legal decision, judgment already has more than one meaning. It is both the actual decision in the specific case—a resolution, if you will— and the record of that decision that is disseminated and used by lawyers and academics in later cases and analyses. As a verb, a court passes judgment in a case; as a noun, a judgment is an object to be used in subsequent argumentation.

In these two perspectives, we can see something else about legal decisions. Not only is any specific case decided, but that decision is then enshrined or stored in some kind of archive to guide or limit future decisions in similar cases. This is known as stare decisis, or letting the decision stand: in order to produce justice, we should treat ‘like cases alike’. In other words, if a series of events takes place and a judgment is rendered in relation to it, if that same series of events takes place again, it stands to reason (see Chapter 3 on reason) that the same judgment should be made again. The same pattern of facts should produce the same legal decision, the same judgment. In this sense, then, a judgment becomes a piece of law, binding on future cases that are sufficiently ‘similar’.

Judgments as objects in this sense, as ‘nouns’, are really just shorthand for the ‘verb’ of judgment—a claim that the same outcome would be produced in similar circumstances. Over the centuries of common law, this notion of stare decisis results in the emergence of relatively stable principles and doctrines. Think, for example, of the offence of murder, which has no statutory basis in England and Wales but is defined only through the judgments of the courts. In many ways, the doctrine of stare decisis is a foundational aspect of common law systems and is characteristic of the common law method. Ironically, it did not exist in the early years of the common law, but it became established practice around the 17th century and has enabled decisions to build up into an archive that can guide decisions in future cases.

Part of the logic of stare decisis is the extraction of a general rule or principle from a particular decision—that is, the ‘law’ of the case, which then applies to other similar cases. Often courts will seek to do this in order to test the validity of their decisions (this is especially so in higher appeal courts). However, if this process simply involves the mechanical application of like cases to like cases, it is not necessarily logical or just and can instead be seen as actually lacking any process of judgment at all:

Precedent without . . . reasoned discourse . . . tells us what has been done in the past but such a statement of past occurrence is not an argument or reason, it has no greater normative status than any other anecdote or repetition of times past.¹

¹ Peter Goodrich, ‘Critical Legal Studies in England: Prospective Histories’ (1992) 12 Oxford Journal of Legal Studies 195, 208.

The doctrine of precedent, of stare decisis, is not simply a requirement for future courts to automatically apply the outcomes of previous decisions in similar cases, but is the enshrining of a particular decision that will become part of the body of (authoritative) legal resources. This collection of preceding law then needs to be judged as appropriate and relevant when considered in future cases. Put simply, the question is one of determining when and in what way cases might be ‘distinguished’ from previous cases. Put with more complexity, it is necessary to reflect upon (interpret, deliberate, contextualise) established principles as an integral part of their application or use. This can be seen most clearly in the critical study of law, which involves questioning sources as they are used or, for example, in the development of more general principles by higher courts as they interrogate how preceding decisions apply more widely.

In short, applying previous judgments involves making judgments: about the relevance of that preceding decision; about how the principles, discussions, and facts in that previous decision should be interpreted; and about institutional legal questions on the authority and cogency of that previous decision and its suitability to the present case or to the present social or political context. Precedent is not simply followed but must always be read and applied in the context of the current case—even if this may not be acknowledged in the written record of a judgment.

1.3 Common law

The building up of precedent results from a central principle of the common law: that like cases should be treated alike, that decisions should be allowed to stand. Over the centuries of legal decision-making, a complex body of law has developed based upon the judgments of the judiciary. Given the complexity of this body of law, it is debatable whether its whole content can ever be known, let alone comprehensively analysed and applied to a new case. The common law is an unwieldy mass that is vastly complex and is distinct from the relative neatness of statutory or codified law that is laid down by a parliament or legislature.

Statutory law, or statute law, is not the product of judicial decision-making but is the outcome of a particular bureaucratic or parliamentary process. Laws are proposed—not necessarily with any pre-existing formal law in place—and are then debated, drafted, amended, and finally passed into force. This is quite different from the discursive or argumentative process of judgment that draws its substance from rules and principles that are seen to already be in existence as binding in the archive of the common law. However, their distinction is not so clear cut. Statutory law does often build upon or attempt to codify common law decisions, and—more importantly— the application of this statutory law is filtered through the judicial process. Judgments are regularly passed on the interpretation, meaning, and scope of statutory provisions. Controversial, but one might even go so far as to say that statutory law only gains its full legal meaning within a common law jurisdiction once it has been authoritatively read in a judgment that determines its meaning. In this way, even statutory law is absorbed into common law processes of judgment.

From the intricacies of individual cases recorded across centuries of history, the common law has emerged as a particular method of legal resolution. It is a method that is characterised not by codified rules but by the qualitative principle that is evidenced through specific decisions. It is the slow burn of this case-by-case resolution that, over time, accumulates into the body of principles we call the common law. There are distinctions to be made between this style of legal adjudication and other judicial systems— most notably the civil law systems that rely more heavily on codified rules. In historical versions of the common law, in contrast, the legitimacy of common law decision-making stems not from anything inherent in the form or process of judgment itself or from the authoritative nature of the ‘source’ of a codified law, but simply from the traditional quality of the common law as a way of doing things. We will consider the authority of judicial decisions more fully in the next chapter, but here it is valuable to preliminarily sketch out this vision of the traditional sources of the common law.

The idea goes like this: the common law is law not because it decides anything in particular or follows particular formal procedures but simply because it has a history that stems back to time out of mind. What this vision of the common law tradition overlooks is the influence of a wider range of external factors on its development, including the scholarly and civil law practices of continental Europe (we will discuss some of this more in Chapter 3). Roman law, for instance, is widely regarded as one of the first fully fledged codified (written) legal systems—the Corpus Iuris Civilis of Justinian was claimed to be the entirety of the law and needed only to be applied to the case at hand to find a legal resolution of a dispute. While the common law did not adopt the same degree of codification, in its early days it did share many practices with the Roman tradition—most notably, the reliance on text and written forms of law (in writs, as well as recorded judgments), as well as the practical reliance on the scholarly expertise of the Church in administering these texts.

The common law has a deep temporal structure, existing not as a static code to be read and applied to each new case independently but as an ever-evolving sea of doctrines that mediates a range of political and social influences across history. Understanding judgment as legal decision involves an appreciation for the effects of this understanding. In an instant sense, a judgment resolves a dispute, but when framed in light of the idea that decisions are only fair if they are consistent—that like cases be treated alike—what emerges over time is a fully fledged body of law to be drawn from in each new case.

Tradition is thus an appropriate word for the common law, given its links with the word ‘translation’. With each new case, each new decision, the previous law is recalled, examined, discussed, and applied—it is translated from the previous contexts of decision to the present one. Each new case updates the law, translating the past into the present. As we will encounter in later chapters (notably Chapters 5, 6, and 7), the written form of the common law that has emerged has a significant part to play in enabling previous decisions to be communicated for use in future cases and to be communicated to future generations of judges and lawyers.

The primary means by which this takes place is via law reporting. Most cases—while operating within the common law tradition of judgment—do not amend or update or clarify the law but apply it to resolve that specific case. In these instances, the aspect of legal decision in play is primarily the resolution of the individual dispute, although done in light of more generally established principles that are read and applied. The judgments that are encountered in databases and law report volumes are not just the transcripts of each and every judgment. Courts themselves keep records of these transcripts and have done so for centuries. What law reports consist of are cases that have some significance for the development of the common law.

Where decisions disrupt or develop the body of the common law in some (minor or major) way, the larger temporal structure of the common law is also engaged. Thus, where a judgment changes or sets a new precedent or clarifies or develops the understanding of an existing doctrine or principle, that case is deemed worthy of reporting: it is important enough to record in a more accessible way than court transcripts. Law reports are edited and compiled, with significant metadata and additional information included alongside the judicial reasoning itself (typically in the form of case head-notes). These docum...