A Critical Analysis of Objectivity in the Legal Sphere.

Objectivity has received a bad name. This presents a special problem to the field of law, and it is a problem that argument scholars are in a position to shed some light on. Setting aside the radical Critical Legal conclusion that the only consistent action is to do away with law altogether (for example, Gable, 1980), there is on the one hand the conclusion that, so long as a legal system exists, it is necessary that judges remain objective (Bennett, 1984). The reason is obvious. The point of law is to enforce justice. However, if judges are deciding on arbitrary bases, then justice cannot be served. But, on the other hand, there is the claim that objectivity cannot be obtained at all. What is to be done with the Critical Legal (and, before them, the Legal Realist) claims that "black letter" law does not constrain judges? The challenge is to find a way to conceive of objectivity that recognizes both its necessity and its elusiveness. It is not enough to merely reassert outmoded assumptions about objectivity nor to viciously "trash" them without leaving adequate ground for social action. Instead, it might be more productive to try to understand how objectivity is constructed and what impact those constructions have on specified outcomes. A close reading of legal decisions is at least one useful vehicle to understand how judges are constructing their own definition of objectivity. KEY CONCEPTS Much of the present debate about objectivity may be confused by static definitions of the term which attempt to define it in a bifurcated fashion rather than in a way that explores its multi-form manifestations. Given this confusion, the search for objectivity ought to begin with a definition, and the process of definition should start by distinguishing three possible meanings. The first is the logical positivist definition, which assumes facts are "thinglike objects existing outside and independent of scientific observers" (Krippendorff, 1989, p. 69), that the facts will yield a single, universal truth (Krippendorff, 1989), and that we only "find" rather than "create" the conclusions. The counterpart in law is legal formalism wherein the law is a thinglike object, and judges "find" the correct decision and apply it to the facts of the case to produce a single, correct decision. Giddens (1989) concludes that these assumptions are "dead;" untenable for a host of reasons so vast as to defy a simple summary. Legal scholars and this author as well agree with Giddens' assertions. As early as 1921, Cardozo (1921/1964) declared the mechanical view of law a dead issue, a useless straw-person argument that had no function other than as a foil for the Realists. Schubert (1964) found no signs of life for the mechanical view four decades later, and Murphy and Tanenhaus (1972) reported that it was every bit as extinct as the dinosaurs in Michael Crichton's Jurassic Park. A second possible definition is offered by Bennett (1984), who argues that judges are objective so long as they rely on the "use of sources for decision external to the decider's own (or subjective) standards or values, without necessarily insisting that those external sources be authoritative". Such a definition is at least more progressive but remains short of the mark because (a) it does not specify at all which standards are to be relied on, leaving the process "objective" but highly arbitrary, and (b) the distinction between those beliefs which are the judge's own and those which are external is blurry at best. Some impressive empirical research shows that judges are likely to rely on external standards which closely mirror their own (Nagel, 1963). A third possible definition of objectivity is a consensual one. In this view, a concept becomes more objective when a consensus of informed opinions adhere to the idea. Sandmann (1991) has usefully described the idea as the application of field theory to law; Sandmann also correctly points out that such conceptions, although they have much to offer, do not really address the problems of objectivity but merely expand the circle of subjective arguments. …