Judicial Decision Making

The life of law keepers especially the lawyers and judges face ethical turmoil at every stage. The lawyers and judges have to make their decisions almost every time under pressure comprehending the right and wrong of a particular situation. It is important to mention that even though the judges and lawyers apparently seem to work in the independent environment but they are driven by different aspects relevant to law. In their decisions making at times they are right and sometimes they are wrong but in every decision they make comes out with immense involvement with the case taken up and in a very methodical ways. The Judges are seen as the lord in law as they exemplify or stand quintessential to truth and are expected to give out verdicts which support truth.  As stated in different books of law and also found out in law researches the lives of judges and lawyers are spent in making ethical choices that becomes the core motto of these law keepers and hence it could be said that their life is not that easy what apparently seems to be through naked eyes.

The Judges are expected to work in the true spirit and integrity of law and should not be dependent on any kind of external aspects that might question the loyalty of the judge towards keeping law. The judges are expected to work in a positive and independent manner and give out verdicts which would help to establish the truth and eliminate any kind of wrong or lies that are there in a case. It is important to mention that the position of a judge in a society is seen with reverence and are also considered as honest since they are the ultimate means of keeping truth but it has been seen a number of times that the judges or justice givers have not been able to act in a clean and transparent ways and have often acted in a cynical manner to give out verdicts which have got the potential to question their loyalty towards law and order in the society. Hence it is considered that judicial decision making is not always an impartial activity and the judicial decisions might get affected by the working of different aspects in and outside the law.

In this situation there have been cases where one has to answer his or her own queries pertaining to the fair action of the judge or the lawyers. Imagining a sequence where one has to appear in a court of law as a plaintiff or a defendant how dependent he or she could be on the judge to give the right verdict in favor of the clean and the innocent. Nowadays it has become very tough to believe the actions of thee judge as interdependence on the external factors has become very conspicuous. There are numerous cases where the culprit have been acquitted and the innocent has been sentenced and this clearly shows that the rationality of the judges are no more there for the subject of law or may be the judges nowadays think of giving away verdicts or coming to their preferred conclusion with the help of different methods. There has been number of cases even researches which has shown the thought process that one judge prefers to take in order to understand a particular case or to make the right decisions but with the time passing by it could be said that the level of intelligence of the judges in order to make judicial decisions have become confined into specific genre of law. They could no more act wise in the scene since they have got gamut of options available at their disposal in order to give a verdict on a particular case.

The aspect of international judicial ethics is an essential subject in law nowadays which helps to understand the movement of a judge in order to act effectively in a particular case. In the recent decade or so there has been one key and undeniable question which no law keeper has been able to answer in a convincing and a comprehensive way and that is “Can the judges make impartial decisions anymore”? This has become one of the key questions that needs to be answered effectively In order to bring back the globally derailed judicial system right back on track. Speaking globally it could be said that in every nook and corner of the world it can be seen that judges nowadays are not able to give completely transparent verdicts and the biggest question that lies here is “Why”.   There has been number of researches which have stated this problems but finding the answers to this question has given real hard time to the researchers. The law scholars have been heard to say that law is such a complicate subject getting impartial decisions is next to impossible. What are needed are a clear and strong argument for and a re-examination of the meaning of the possibility of impartiality. Before we delve deep into these aspects of impartiality and other key attributes it is important to understand and know the clear meaning of Impartiality.

Impartiality in law could be defined as the action from a judge where assessing all the different aspects in a case he or she is able to give the right verdict obviously in favor of the truth which will not only justify the choice of the methods used in giving the verdict but will also help to underpin the decision made with respect to law. Impartiality has been a crucial subject in law especially in the making of judicial decisions which has the power of redesigning the life of an individual or a society. Hence it is important to discuss the key question that is given above which would help to know the key reasons of why nowadays judges cannot act impartial always and tend to use different methods to reach a preferred conclusion. There are certain key aspects which play a significant role in making the judgement impartial. The concept of impartial decision making is supported by replicable decisions. It is important to mention that the judgement will be impartial only when the judges are able to assess a particular scenario and are able to reproduce the same results and through this it could be effectively assessed. In other words the judges will have to think continuously and cannot constrict their thought process in a smaller circle.

Impartial decision also means that the decision given by the judge is not in any way driven his or her desires or wish as this would be a huge moral setback for the law as the law keeper himself is not able to channelise and utilise the power vested upon him and have misused it for self interest. In the Case Ebner vs. Official Trustee in Bankruptcy (2000) 75 ALJR 277 acts as the perfect example to the above statement. In this case where Maxwell William Ebner was the plaintiff and The Official Trustee in Bankruptcy was the defendant had a legal battle in the High Court in Victoria Australia. In this case the Judge who was presiding over the case was beguiled by the huge sum of money left by his departing mother in the defendant bank. The judge intentionally gave the verdict in favor of the defendant that is The Official Trustee in Bankruptcy which was later revealed once the case was over in the court. It could be said that it was a clear impartial decision in favor of the defendant as the money was left by the judge’s mother in the defendant bank and in order to safeguard his own interest the judge sentenced in favor of the defendant which was clearly impartial from the side of the judge and then the case went back to operation in the court once the true intention of the judge was revealed. Hence it could be said that impartial decision making also stands to be a clean and effectively thought decision by the judges.

It could be said that there has been a change that has come with the introduction of technology in the global legal system and it cannot be denied that it has brought efficacy in the legal system but it has also affected the decision making since it has made tampering evidence and data too easy which at times confuses the judges and hence they stray in line to give the best possible verdict. Hence it could be said that judicial integrity is at stake due to the repeated cases of impartial decisions made by judges. Another similar impartial decision given by a judge had seen in disqualification in a case of Clenae Pty Ltd v ANZ Banking Group where the judge became a shareholder of the Banking group before he gave out the verdict in favor of the defendant which was ANZ Banking group. The judge had pecuniary interest in the bank and hence this made him give the verdict in favor of the defendant and it also got the judge disqualified. In the recent past there has been number of studies which has focused on the action of judges, lawyers especially their movements towards giving successful and impartial results. There are number of challenges towards judges becoming independent and impartial towards decision making. These challenges mainly affect the decision making of the judges and also affect their loyalty and honesty.

The necessity of impartiality has been widely found in the literature that in order to understand the psychology and behavior of the others. In this scenario it could be said that the judges and lawyers in order to understand and explain the behavior of the individuals they would prefer to use methods which will help them to come to a preferred conclusion. The job of judicial decision making is one of the complex jobs as there are number of aspects which the judges have to assess and hence it becomes complex. A case which is framed by Professor Fuller has got all the different aspects which could be discussed effectively in order to understand the actions taken up by the judges.

The case of Speluncean Explorers has been considered as one of the most interesting cases framed by Prof. Fuller. Even though the case is a completely fictitious case but it has been able to highlight the considerations that judges make and also see a particular case from their own point of view even though they swear in to make the right decisions to keep the integrity of law intact. The case provides an effective platform to assess the decisions given by the judges as well as to draw a generic view of the thought process the judges. Speluncean Society is a society involved in exploring caves and team of around 32 members went on to explore a cave in the Commonwealth of Newgarth where they experienced catastrophe in the form of landslide and around 1o members of the team died and when they were waiting for their unfortunate death to come they were able to build radio connection for rescue. From the communication it was clear that at least another 10 days are required to rescue them from the cave and since they have no food their death was imminent. The group asks the rescue team doctors about their survival without food and the answer was on the negative side, they also ask that if they kill one of their fellow members and eat him whether they will be able to survive until they are rescued and this time the answer was a reluctant yes. The group decides to go for lottery and whoever loses it is going to sacrifice his life for the rest of the team and that’s what happens and a man named Whetmore is cannibalised. After the rescue the Speluncean workers are prosecuted for Murder. It is said that framing of the case has been inspired by two real life cases one of which had a similar fate for the homicide.  The Regina v. Dudley & Stephens (1884) showed that even the conditions become extreme but the law will be the same for everyone. In this case Dudley and Stephens was accused of Cannibalism against Parker a young fellow seaman who was put to death and feasted upon by the above named accused and for this they were sentenced to death even after knowing the extreme condition that the prosecuted were suffering at sea. But in this case of Speluncean Explorers the judges made different views and different decisions considering the extreme conditions that the accused had to suffer which clearly contradicts what the rule and law has to suggest. This is where the biggest contradiction lies and it clearly highlights that judges do make impartial decisions at times when they have to see a case from their own point of view just deviating from the point of view of law. In this case five judges have been used who have given different comments as well as different decisions have been taken by them considering the case based on its merit.

When the defendants appeared in front of the Jury it took the conventional route and sentenced the defendants’ death sentence as per the law of Commonwealth of Newgarth since the defendants were indicted for murder. Post trial the jury joined in for communication with the chief executive of Newgarth where jury requested to reduce the sentence to six months stating the situation which they had to face was unnatural and asked for clemency. This is where Truepenny CJ the Supreme Court judge gave his decision saying that only clemency from the Chief Executive could turn down the verdict made by the jury which clearly shows that the judge prefers to rely upon clemency which he feels is the best way to solve this case and does not want to question the sentence and this clearly shows his honor’s reluctance to face the case and rightly said by the next Judge who states the action of the Truepenny CJ as “embarrassing”. The impotence of Truepenny CJ was criticised by Foster J and he analysed the case from a much more human point of view and in order to support his statement he made a statement in order to define the position of the explorers under the cave as the “State of Nature” which shows the humane side of the judge even when he is not supposed to bring his personal views in the case. Foster J brings up different aspects. His Honor also States that when there is a situation which asks for killing of life to save another life the law ceases to exist and hence he gives his decision in favor of the defendants clearly stating that the conviction should be set aside.  Another judge Tatting J started his analysis by clearly mentioning that judgement should be made by keeping the emotional and the intellectual form separated. Tatting J stated that Foster J was not able to keep his emotional side away from the judgement which is absolutely true from his decision as well as his statement. He gave two different options for the court of law where they should go conventionally towards the case but on the other hand he also brought up the aspect of self defence and his honor stated that he is confused with some of the aspects of the case and hence preferred to keep out of it. The fourth judge Keen J has showed his preference towards the decision of conviction and immediately terminates the element of fantasy brought in by Foster J and also says that clemency is clearly the decisions of the Chief Executive and judicial power should be separated he also wants that hard decisions are important and the convictions should be affirmed. Finally Handy J the fifth Judge has brought in the aspect of common sense theory and states that if there is anything called common sense it has to be applied here and also highly emphasises on public opinion which according to him is mostly sought after by the Law in order to establish a decision. He says that in this case there has been no visible public support in favor of the Chief Justice’s decision of upholding the verdict and asking for clemency. He also informs that given the staunch views of the Chief Executive he is quite sure that CE of Newgarth will   not mediate in the verdict of the court and hence the option of clemency is purged. Hence concludes his statement by saying that if the common sense approach has to be taken this was the perfect time and as per commons sense the defendants were innocent and hence conviction should be set aside.

From the above arguments it is quite clear that judges have their own way of assessing situations even though they are bound by law and cannot express their own views and will have to run as per law they have been able to get the own methods to work in order to justify their decision making. Speaking generally it could be said that Judges come up with different practical arguments as well as tend to bring the element of fantasy in order to establish their stand for or against a particular aspect which clearly indicates that being impartial is a real problem in judicial decision making as seen in the case of Foster J and his argument for the defendants in Speluncean Explorer case. On the other hand the practical argument put forward by Keen J where he feels judicial exemption  might call for more trouble in the future  as compared to making one tough decision in the present. To conclude it could be said that judges tend to be impartial which is clearly mentioned by Tatting J in the above mentioned case by Prof. Fuller and hence they tend to use different methods to establish their stand and their arguments which is quite clear from the discussion presented above.

Alfini, J.J., Lubet, S., Shaman, J.M. and Geyh, C.G., 2010. Judicial Conduct and Ethics. LexisNexis.

Bennett, M.W., 2010. Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problem of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions. Harvard Law & Policy Review, 4, p.149.

D’Amato, A., 1980. The Speluncean Explorers: Further Proceedings.Stanford Law Review, pp.467-485.

Füller, L.L., 1964. The morality oflaw. New Häven andLondon: Yale University Press1964, bes. Kap, 11.

Fuller, L.L., 1969. The morality of law. new haven. CT: Yale University.

Fuller, L.L., 2009. Most Controversial Judicial Decision of all Time-The Case of the Speluncean Explorers, The. Revista Forumul Judecatorilor, 1, p.95.

Pollock, J.M., 2014. Ethical dilemmas and decisions in criminal justice. Nelson Education.

Clenae Pty Ltd v ANZ Banking Group[1999]

Ebner vs. Official Trustee in Bankruptcy [2000] 75 ALJR 277

The Regina v. Dudley & Stephens [1884]