Pen and paper

Past, Present and Future

John Finnis contrasts the temporal perspectives of legislatures, executives, and the judiciaries. As he sees it, legislatures look forward as they seek to work out how a framework of law might be improved; executives address current situations, assuming a framework of enacted laws; judiciaries look backwards at what has been done, again assuming a framework of enacted laws. These temporal contrasts are basic to his comments on the proper limits of judicial action, including (at least in part) his criticisms of judicial appeals to proportionality.

As it seems to me, Finnis’ temporal distinctions describe the overall perspectives of the three arms of government, but tell us only a limited amount about the tasks and the action of legislatures, executives, and judiciaries. In the first place, lawmaking has to do more than look forward. Typically legislating is a matter of enacting or repealing specific laws in order — it is hoped! — to secure some improvement. To do this adequately it is first necessary to identify the mischief to be remedied, and then to judge whether changing existing law in specific ways would (help to) remove or mitigate this mischief, and whether it would lead to further problems.[1] In legislating it is therefore important to look back to what has happened and ‘sideways’ at what is now happening, in order to identify which changes may be needed and useful. Even more clearly the discursive character of democratic lawmaking, which Finnis emphasises, requires legislators to look to the past and to the present as well as to the future.

Secondly, some judicial decisions look forward rather than backwards. In judging a particular case within a framework of existing law, judges apply that law to what has been done, or to the account of what has been done established by the court. But when judges pass sentence or make an award in civil litigation, they make a practical judgement that is forward rather than backward looking. Since these practical judgements also lie within a framework of enacted law, it seems to me that Finnis can allow for forward-looking judgement of these sorts by the judiciary. In reaching a verdict, an actual case and the relevant law are both given, and judges indeed look back to what has been done in applying the law to the case. But in passing sentence their judgements are not intended to apply to anything that has actually been done, but rather to shape an aspect of what will be done in the future. So the differences between legislative, executive and judicial action depend on more than their respective focus on future, present and past. As I see matters, it is therefore important to say rather more about different types of acts of judgement.

Judgement and Indeterminacy

The generic difficulty for any account of judgement is that rules, laws or principles always underdetermine judgement. There are no algorithms for judgement.[2] However, the implications of underdetermination differ with the type of judgement being made. To understand this, it can be useful to think about some distinctions between types of judgement that have been developed for wider purposes. Here I shall set out Kant’s distinctions between three types of judgement, and suggest that they partly chime with, but also in some respects challenge, Finnis’ temporal perspective on judgement.

Kant’s account of judging focuses not on the temporal perspective taken in acts of judging, but on the types of action that different sorts of judging require, and their respective presuppositions. His central distinction is between determining and reflective judging of actual cases:

The power of judgement in general is the faculty for thinking of the particular as contained under the universal. If the universal (the rule, the principle, the law) is given, then the power of judgment, which subsumes the particular under it … is determining. If, however, only the particular is given, for which the universal is to be found, then the power of judgment is merely reflecting.[3]

Kant characterises subsumptive or determinant (also determining) judging as done by applying a given “universal” (a rule, law or principle) to an actual case (not necessarily a legal case, but a particular). This type of judgement is ubiquitous in daily as in institutional life, and in much judicial action. Subsumptive or determinant judgements are common coin: in making an empirical judgement we ask whether some “universal” (rule, law or principle) applies to some particular case. All of us make determinant judgements whenever we make empirical claims, as do judges in applying enacted law to a case and reaching a verdict. Secondly, Kant discusses reflective (or reflecting) judgements, where an actual case is to hand, but no (obvious) “universal” (rule, law or principle) is given and so one has to be “found” or selected. As I understand him, Finnis thinks that the judiciary should be very restrained in making judgements of this type. Thirdly, Kant discusses practical judgement,[4] in which a “universal” (rule, law or principle) is not applied to an actual case, since no actual case exists at the time of judgement. Here judgement is used to shape or enact what will be done: practical judgement, including practical judgement by the judiciary, is future oriented.

As it seems to me, the judiciary unavoidably make both determinant and practical judgements. However the controversial issue is whether and when they may make reflective (or interpretive) judgements, and specifically whether they may appeal to proportionality in doing so.

Resolving Indeterminacy

Indeterminacy is fundamental to judicial (and other) judgements, and has to be resolved in making any judgement. Even in the case of determinant judging, where both an actual case and the relevant “universal” (rule, law or principle) are given, it can be hard to resolve indeterminacy. The application of a “universal” in such cases can be difficult and may be contested because there are often borderline cases: is a colour sample red or purple? Is a person tall or average in height? Is a duckbilled platypus a mammal or not? Was a case of driving off in somebody else’s car a case of theft, of borrowing, or of twocking? Indeterminacy can also be hard to resolve in making practical judgements, where a “universal” (principle, rule, law) is given and relevant, but could be enacted in a range of ways. Determinant and practical judgement are both essential for judicial practice, and while each may be challenging they may not be more problematic for the judiciary than they are for those making judgements in other domains of life.

However, reflective judging, where the relevant “universal” (principle, rule, law) is not given but to be “found” or selected, seemingly places fewer constraints on judgement, and may therefore be more controversial in judicial decision-making than in some other areas of life. However, reflective judgement raises questions in many other contexts in which interpretation is needed. How much discretion is acceptable in matters of interpretation? How are we to distinguish better from worse judgment — or better from worse interpretation — where an actual case is given, but there is no given “universal” (rule, law or principle) or no agreement on which “universal” is relevant?

Much of the literature on reflective judging or interpretation in recent decades has focused on literary and aesthetic judgement, and some writers have argued (perhaps hoped) that a wide degree of latitude is acceptable in these areas. This seemingly cannot be the case with judicial judgements: hermeneutic playfulness may be exciting (or tedious?) in aesthetics or literary criticism, but it is surely out of bounds in judicial reasoning. But can we conclude that the judiciary should never make reflective judgements? That surely would also be implausible: judges are standardly taken to interpret as well as to apply the law. Finnis points to the importance of judicial interpretation in declaring the law where a “hiatus” or “excrescence” has arisen, but argues that such interpretations should be tightly constrained in order to ensure that they do not introduce or become a form of judge-made law.[5]

One evident difference between judicial and aesthetic judgment is that the former may and should appeal to authority (in this case enacted law) but the latter need not, and on many accounts should not. However, judicial decisions are not the only judgements where appeals to authority are often seen as decisive. For example, many discussions of scriptural interpretation comment on the role that appeals to authority may or should play, and distinguish between authorised and unauthorised interpretations. Here, of course, the authority invoked is ecclesiastical, rather than enacted law.[6]

However an assumption that judicial judgements should appeal only to the authority of enacted law would be incomplete, for two reasons. The first is that the facts of a case may be open to many interpretations. The second is that it is common for many laws to be “given”, and judges have to determine the “weight” that each is to have. Judges have to deal both with a plurality of facts and with a plurality of “universals” (rules, laws or principles). This is the terrain on which questions about balancing and about proportionality arise.[7] Both terms are physical metaphors, but there is no metric for their use in judicial practice. Yet something must be said about each type of interpretation.

Although the metaphor of balancing may suggest that there must be some metric for balancing the various facts of a case to hand — which there is not — balancing facts that are established is unavoidable, sometimes very difficult, and amounts to a form of interpretation. It cannot be seen either as determinant or as practical judgement, and seeks to take an overall view of a plurality of features of actual cases. The “balance” reached in two cases in which similar types of facts are established may, however, rightly differ. I do not see that this sort of a balancing is avoidable, and it is not a form of judicial lawmaking. Any complex legal case will raise issues not just about subsuming given facts under a range of laws, but about the weight (another mathematical metaphor!) to be given to particular facts. Judges, like others, have to take account of a plurality of facts.

The second case arises when judges consider a plurality of “universals” (rules, laws or principles), and decide to constrain some and give priority to others. Such cases range from decisions that certain human rights may or must be qualified in specific ways in order to secure an adequate interpretation of other human rights, to decisions that specific laws must be qualified and adjusted in specific ways in order to respect other laws. This is the source of what Finnis sees as evidence of a “drift … towards the subjection of legislative power, directly or indirectly, to judicial power … in which judges [assume] the role of constitution makers and legislators”.[8]

However, where such approaches are expanded into claims that a specific way of qualifying one law by another has authority for other cases a further assumption is in play. Such appeals to proportionality not merely take a view of the way to qualify certain “universals” in a particular case, but also assume that that view should determine what is proportional, and thereby also authoritative, for other like (or perhaps not so like) cases.[9] Judicial determination of the relative weight of principles that may conflict, and of the appropriate qualification of one law by another in a given case, is surely unavoidable. But it does not follow that the determination reached in a given case is or should be generalisable across like cases, or should be treated as determining what is proportionate or as setting a precedent for future cases. Nevertheless, precedents are widely taken to have some weight in judicial reasoning. This, I suggest, is the terrain on which the limits of acceptable appeals to proportionality need to be addressed.

Baroness O’Neill of Bengarve, CH CBE FRS FBA (Onora O’Neill), a Crossbench member House of Lords, was Professor of Philosophy at the University of Cambridge and Principal of Newnham College. Baroness O’Neill gave the Reith Lectures in 2002 and was President of the British Academy from 2005–2009 and Chair of the Equality and Human Rights Commission until 2016. In 2017, she was awarded the Holberg Prize and the Berggruen Prize.

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[1] Legislatures often do not judge these matters particularly well. See my “Making Laws Better or Making Better Laws?” (2012) 3 Jurisprudence 1—12.

[2] Cf. “An algorithm is a finite procedure, written in a fixed symbolic vocabulary, governed by precise instructions, moving in discrete steps … whose execution requires no insight, cleverness, intuition, intelligence or perspicuity, and that sooner or later comes to an end”, David Berlinski, The Advent of the Algorithm: The Idea that Rules the World (New York: Harcourt Inc., 2000), xviii. One might add that where there are algorithms, judges and judgement are displaced or redundant.

[3] Immanuel Kant, Critique of Judgement, 5:180; cf. First Introduction to the Critique of Judgement 20:211 Some translations have determinant for determining, or reflective for reflecting; the latter judgments are also often seen as interpretive.

[4] The most extensive and interesting discussions are to be found in Kant’s later works, including Metaphysics of Morals, Theory and Practice and his political and theological writings of the 1790s, which contain numerous comments on judicial judgement.

[5] Cf. John Finnis, “Judicial Power: Past, Present and Future”, this volume, 29-30.

[6] Kant explored the parallels between judicial and scriptural judgment at some length in his late work and reached a position similar to Finnis’ on judicial interpretation. See, for example: “The jurist, as an authority on the text, (der Schriftgelehrte Jurist) does not look to his reason for the laws that secure Mine and Thine, but to the code of laws that has been publicly promulgated and sanctioned by the highest authority … [and must] straightway dismiss as nonsense the further question whether the decrees themselves are right” (Immanuel Kant, The Conflict of the Faculties, 7:24-5).

[7] I take it that they differ. See the papers in Grant Huscroft, Bradley W. Miller and Grégoire Webber (eds.), Proportionality and the Rule of Law; Rights, Justification, Reasoning (Cambridge: Cambridge University Press, 2014), including especially Frederick Schauer “Proportionality and the Question of Weight”, 173-185.

[8] John Finnis, “Judicial Power: Past, Present and Future”, this volume, 57.

[9] Again see many of the papers in Huscroft, Miller and Webber (eds.), Proportionality and The Rule of Law; Rights, Justification, Reasoning.