Legal Interpretation is an Arbitrary Activity - Essay Example

Legal Interpretation is an Arbitrary Activity The process through which judges reach the decision of the cases on their hands has been widely debated. Some consider this process and objective procedure while others consider the process to be arbitrary and unclear. As such, it has been suggested that legal interpretation is an arbitrary activity. When judges decide a case they do not follow a set of pre-existing standards, but rather rely on a variety of techniques to get the result that they like. This is clearly demonstrated by Fullers hypothetical case of the Speluncean explorers where five judicial opinions were given that conflicted each other. This paper will critically analyse the above statement that legal interpretation is arbitrary and that judges rely on a variety of techniques to reach the conclusion they prefer rather than using a set of pre-existing rules or standards. An arbitrary decision can be defined as one that is determined by impulse and chance and not by reason or principle. This type of decision is made based on individual judgment or preference.1 When one states that legal interpretation is arbitrary, he or she means that the interpretation of law is made based on one’s judgement or preference as opposed to the use of reason or principle. One problem that characterizes the decisions that are made by judges is that no one apart from the judge clearly knows the basis of those decisions. A judge might cite several aspects from which he or she makes the decision. However, this might not be agreeable to all people2. Generally, the law states that a court’s decision on a certain problem or case must be reached by looking at the available evidence. When a defendant is sued by a plaintiff, the plaintiff should use evidence to prove beyond reasonable doubt that the defendant is guilty3. The defendant should also prove beyond reasonable doubt that he or she is not guilty of the accusations laid against him or her. If this were followed, when decisions are based on this aspect, then it would obviously mean that legal interpretation is not arbitrary. However, an important question that comes up in this respect regard whether judges apply this rule to all their decisions. This is a difficult question to answer because normally the decision comes from the judges and they are the ones who know what they look at before reaching the decision4. The concept of interpretation of the law has different senses. Many factors can determine how an interpretation is made. Interpretations are made from everyday language that legislators use as communication mediums. However, it is important to understand that language is vague and ambiguous. The law also has gaps and inner inconsistences, for instance the inconsistencies that were outlined in Fullers hypothetical case of the Speluncean explorers similar to R v Dudley and Stephens5. A statutory provision can have many interpretations. The person who is interpreting the law, for instance, a judge has to choose between the available interpretations. In another view, there are cases that present challenges in terms of the provisions that should be applied when a decision is made. For instance, such cases have several provisions from which the decision should be made. In this regard, the judge has to make a decision regarding the provision that he or she will use to give a ruling to the particular case. This brings about the problem of qualification, which means that a judge has to decide a specific provision that qualified to be used in making an appropriate decision for the case. This shows that legal interpretation is arbitrary because it depends on the subjective decisions of the judge rather than the principles provided6. In legal realms, a statutory provision that has many interpretations is the most common because the point of departure always has to do with an ambiguous text of law. However, in judicial practise, the issue of several provisions that can be applied to a particular case is common. For instance, in a criminal case, the description of the act could be problematic in the sense that there could be different ways of describing it. Therefore, the fact that a statutory provision could have several interpretations or the fact that there could be several provisions that could be applied to a specific case, the only important aspect is the point of departure that differentiates the two facts. These include a legal text or a concrete case7. Therefore, when the two issues are not present, which often occurs because of shoddy investigations of lack of proper legislations, the judge has to make a ruling that will be based on personal or subjective interpretation. In light of this, it would be sensible to state that legal interpretation is an arbitrary activity. The activity of the judge is also an important aspect in the discussion of whether legal interpretation is an arbitrary activity. One of the roles given to a judge under the legal machinery is to apply the power to make decisions in all cases that are presented to him or her. The law has been described as a coercive order especially because it gives the judge the power to make decisions that affect other people regardless of whether it favours or goes against their wishes. As such, the law obligates a judge to make decisions on all cases that are presented to the court regardless of whether the cases have enough evidence or not. In fact, it is the obligation of a judge to make a decision that shows whether the case has enough evidence or not. The power to make decisions does not consider whether the judge has an appropriate grasp to the law that is to be applied to that particular case. This means that the judge does not always know the best or legal solution to every case brought to him or her. When a judge is presented a case where he or she does not know the law to be applied, he has to make a decision, which serves as the solution that will fulfil the demands for legal certainty8. According to reformer Olaus Petri, arbitrariness is not an appropriate aspect in the Nordic concept of law because it does not serve the people, yet most important mandate of law is to serve the public. However, Petri’s work does not define what arbitrariness is9. However, when considered through modern usage, it means that the decisions coming from judicial activity should be predictable. Therefore, when judicial decisions are predictable, citizens can easily make predictions of their own future and current activity. In the Nordic legal culture, arbitrariness is only an aspect of legal certainty because other aspects such as the good and benefit of the common people come into play10. Therefore, in ensuring that arbitrariness is avoided the judge is required to ensure that the decisions he or she makes are good and provide benefits to the common people. To do this, it means that it is necessary for the judge to interpret the law in a manner that provides benefit to the common people even when the law is contrary to that decision. For example, when two parties have a legal dispute, the majority of people would expect that a judge’s decision that is lawful and acceptable, meaning that they expect a predictable decision11. This expectation also means that the judge must observe the law but also consider the acceptable societal values in society. Therefore, the legal certainty has two important aspects that include the law and values. In line with this, therefore, judges have to pay attention to the two central aspects. This out rightly means that legal interpretation is an arbitrary activity because judges get to choose whether to use the law and ethics together or use the law of values when the need for one outweighs the other. Here, the judge cannot always base his or her decisions on the provided principles but also on subjective aspects12. In another view, it has been suggested that legal interpretation is not an arbitrary activity because the judge or jurisconsult’s invention is checked by society especially in terms of the intellectual pathways leading to a judge’s decision and the argument that sustains that decision. Here, legal argumentation is the basis of the legal provisions considered as correct in the judgement process. The in this respect, the law lies in the act of stating, which means that each interpreter is not free in his or her way of stating the law because it would mean that the law does not meet the obligations placed on it by society. Therefore, when stating the law and making decisions, judges are bound by different rules that aim at achieving coherence. This means that legal interpretation is not an arbitrary activity since judges do not rely on their subjective decisions but on the rules provided to make the interpretations coherent13. However, the above proposition is not correct. The availability of rules that are established to ensure that judges’ decisions are coherent and made in line with the law does not mean that all decisions made by judges will be done within the provided rules. This cannot happen especially where the judges are supposed to achieve a legal certainty that is based on a balance between the available laws and societal values. Moreover, the decisions that judges make must be in consideration with the available evidence that is presented in defence of the case at hand. For example, when a murder suspect is presented in court, the judge will consider the evidence that is presented to show that the suspect is guilty of the charge14. The judge will make his or her decision based on the evidence. The suspect might have committed the act, but when the prosecutor fails to show evidence for it, the judge might be forced to let the suspect go. On the other hand, the judge might decide to sentence the suspect in case he or she feels that the decision is an appropriate one even when the evidence is not sufficient. The most important aspect here is that rules are not always applied by judges when they need to reach decisions15. In conclusion, legal interpretation is an arbitrary activity. When judges decide a case they do not follow a set of pre-existing standards, but rather rely on a variety of techniques to get the result that they like. This is a factual statement because it represents what happens in practise as discussed above. There are several aspects that make judges not to consider the rule of the law only when making decisions. Such issues include societal values, several provisions that can be applied to the same case and statutory provisions that have many interpretations. These issues make it difficult for judges to rely on specific aspects in decision-making, thereby making legal interpretations an arbitrary activity. Bibliography Cases R v Dudley and Stephens [1884] 14 QBD 273 DC Books Bergling, Per, Jenny Ederlöf, and Veronica L. Taylor. Rule of Law Promotion: Global Perspectives, Local Applications. (Uppsala: Iustus Förlag, 2009). Bianchi, Andrea, Daniel Peat, and Matthew Windsor. Interpretation in International Law. (London: Oxford University Press. 2015). Morigiwa, Yasutomo, Michael Stolleis, and Jean-Louis Halpérin. Interpretation of Law in the Age of Enlightenment: From the Rule of the King to the Rule of Law. (Dordrecht: Springer, 2011). McDowell, Gary L. The Language of Law and the Foundations of American Constitutionalism. (Cambridge: Cambridge University Press, 2010). Nerhot, Patrick. Law, Interpretation, and Reality: Essays in Epistemology, Hermeneutics, and Jurisprudence. (Dordrecht: Kluwer Academic Publishers, 1990). Peczenik, Aleksander. On Law and Reason. (New York: Springer, 2014). Ribeiro, Marc. Limiting Arbitrary Power: The Vagueness Doctrine in Canadian Constitutional Law. (Vancouver, B.C: UBC Press, 2004). Seibert-Fohr, Anja, and Lydia F. Müller. Judicial Independence in Transition. (Berlin: Springer, 2012). Journals Eskridge Jr, William N. "Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell." Geo. Wash. L. Rev. 61 (1992): 1731. Read More