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position opposed to his own well-being than is really due. All in all,
then, a quest for impartiality in legal decision-making is best advanced
when each of¬cial responsible for dealing authoritatively with some issue
is genuinely disinterested. Insofar as decisions can be assigned to legal
of¬cials whose own fortunes are not tied up with them, they should be
so assigned.
This point about genuine disinterestedness is particularly weighty
when the issue on which a legal-governmental of¬cial has to pass judg-
ment is not some broad matter of public policy such as taxation, but
a matter that impinges on his own interests far more than on those of
all or most other people. For example, a paradigmatic deviation from
impartiality would be a judge™s presiding over a trial of someone accused
of having murdered the judge™s daughter, or a public regulatory admin-
istrator™s presiding over a hearing of allegations against a company of
which the administrator is a director. Even in circumstances in which a
legal of¬cial™s interests are not at stake to a far greater degree than those of
most other people, moreover, genuine disinterestedness should be sought
if it is reasonably attainable. Suppose, for instance, that a public regu-
latory administrator is to preside over a hearing of allegations against a
company in which he holds a large number of shares. Suppose further
that virtually everyone else in the community holds a similar quantity of
shares in the company. Nonetheless, despite the fact that the administra-
tor does not stand to lose or gain much more from his judgment on the
company™s dealings than does anyone else, he should be required to take
measures to achieve a posture of genuine disinterestedness. He should at
least be required to place his shares in a blind trust that can be managed
by an independent third party; perhaps, more robustly, he should even
be required to divest himself of his shares altogether before undertaking
the investigative hearing. When a legal-governmental of¬cial confronts
a serious problem that obliges him to decide between competing claims
and interests, and when he can deprive himself of any personal stake in
Dimensions of Objectivity 57


the matter by taking steps that are not unreasonably onerous, his taking
those steps should be mandatory. Impartiality would not be impossible
without those steps, but it would be far more dif¬cult and precarious.
Ideally, these remarks about disinterestedness would be applicable to
the legislative branch of a legal-governmental system as well as to the
judicial and executive branches. Legislators passing judgment on matters
of public policy should be doing so from a perspective focused on the
common weal rather than on personal gain. However, in Western liberal
democracies “ to say nothing of tyrannical regimes in other parts of the
world “ the requirement of disinterestedness is typically much less strin-
gent for legislators than for adjudicators and administrators. On the one
hand, undoubtedly countenanceable or at any rate tolerable is the fact
that most legislators quite routinely vote in ways that are calculated to
gratify their constituents. A legislator who very frequently goes against the
wishes and interests of her constituents will not usually fare well in sub-
sequent elections. Besides, in addition to furthering her own aspiration
to remain in power, a legislator who endeavors to please her constituents
is actually performing one of the principal roles of her of¬ce. In a lib-
eral democracy, each member of a legislature is called upon to ful¬ll a
representative function as well as the function of promoting the general
public good. Hence, when a legislator advances her own interests as a
future candidate for reelection by heeding the views of her constituents,
she is not really straying from what she ought to be doing (at least if
fundamental rights are not under consideration). On the other hand,
although a legislator does not really act improperly when she abandons
strict impartiality by following the inclinations of her constituents on
matters of public policy (as opposed to matters of fundamental rights),
legislators™ departures from strict impartiality in the major liberal democ-
racies “ especially in the United States “ frequently go well beyond the
ful¬llment of any representative function. Large and well-funded orga-
nizations, many of them devoted principally to lobbying legislators on
various issues, exert enviable in¬‚uence in the areas of public policy that
concern them. Such organizations, which hail from sundry points on the
political spectrum, attain their in¬‚uence by offering ¬nancial support
and other electoral assistance to friendly politicians and by threatening
to resist ¬ercely any politicians who are not sympathetic to their aims.
58 Objectivity and the Rule of Law


Faced with these carrots and sticks, many legislators vote (on certain
issues) in compliance with the organizations™ behests rather than on the
basis of any disinterested assessments.
It is debatable whether these marked deviations from the ideal of
disinterestedness on the part of legislators should be sharply curtailed
through more stringent regulation. As James Madison recognized in his
classic discussion of the role of factions in politics (Madison 1961 [1788],
78), the suppression of factions is a cure worse than the disease. What
is more, the coalescence of citizens into a high-pro¬le lobbying group
may be the sole effective means by which they can garner support and
respect for their possibly worthy cause. Thus, although legislators would
act optimally if they were to take the general public weal rather than
their own political fortunes as their lodestar when arriving at decisions
on key matters of public policy, the electoral pressures that divert them
from doing so are by no means unequivocally deplorable. Of course, cer-
tain types of departures from disinterestedness (involving corruption, for
example) should be proscribed for legislators as much as for other legal-
governmental of¬cials. However, a severe requirement of disinterested-
ness for legislators “ involving, for instance, harsh limits on the spending
and the political activities of organizations devoted to lobbying “ would
not be unalloyedly bene¬cial for the workings of a liberal-democratic
system of politics.
Whatever may be the desirability of a greater degree of disinterest-
edness on the part of legislators, the importance of a very high degree
of disinterestedness on the part of judges and administrators is virtually
undisputed. We shall ponder the reasons for that importance shortly (and
in the next chapter), but we should ¬rst consider the other main element
of objectivity qua impartiality. An impartial perspective for decision-
making is not only disinterested but also open-minded.


1.2.5.3. Open-Mindedness

One evident component of open-mindedness is the absence of prejudice
and favoritism. If some person P harbors special animosity or special
fondness toward certain people “ particularly on grounds such as race
and religion and ethnicity, which are unrelated to people™s merits and
probity “ then P lacks the open-mindedness that is essential for reaching
Dimensions of Objectivity 59


impartial decisions on matters that pit such people against other peo-
ple. To be sure, P might still be able to render impartial judgments on
matters that involve only the sorts of people toward whom he feels pecu-
liar antipathy or affection. If P is biased in favor of Hispanic people,
for instance, he might nevertheless be suitably impartial when passing
judgment on a contract-law dispute between two Hispanic businessmen.
However, insofar as his prejudices do bear on an issue which he is called
upon to decide “ and, thus, insofar as those prejudices are likely to in¬‚ect
his stance on that issue “ his perspective on the issue is not open-minded
and is therefore not impartial.
Of course, biases vary in intensity. If P is only mildly prejudiced
(favorably or unfavorably) toward people of a certain kind, then his
open-mindedness when dealing with such people is not very materi-
ally compromised. Moreover, just as somebody may be able to prescind
from her personal stake in some matter in order to deliver an impartial
judgment thereon, P might be able to put aside his prejudicial attitudes
in order to reach decisions fair-mindedly. All the same, the likelihood
of a genuinely impartial stance in such circumstances is far lower than
in circumstances in which P does not harbor any invidious biases. Even
less likely, if P™s attitudes have become known, is that his decisions will
be perceived as impartial. Consequently, both for the actual objectivity
of a legal system™s operations and for their perceived objectivity, a lack of
bigotry on the part of legal of¬cials is crucial.
Another central component of open-mindedness (and thus of impar-
tiality) is the absence of whimsicalness and impetuosity. Someone who
plunges ahead without attending to the actualities of a situation is failing
to display open-mindedness, just as dramatically as someone whose prej-
udices blind him to those actualities. To be open-minded in addressing
some problem is in part to be scrupulously ready to learn of the sundry
facts from which the problem arises. Albeit somebody who proceeds on
the basis of caprices and conjectures might fortuitously arrive at a correct
decision in any particular context “ as might somebody who proceeds on
the basis of prejudices “ the outcome will not have been reached through a
process that is designed to avoid favoring or disfavoring anyone arbitrar-
ily. A process that is appositely designed will ensure that decision-makers
become apprised of all relevant facts to which they can reasonably gain
access.
60 Objectivity and the Rule of Law


1.2.5.4. Open-Mindedness in a Juridical Setting

In a system of law, judges and other legal of¬cials will need to make
use of techniques through which they can become acquainted with all
the reasonably ascertainable facts that bear upon the legal questions to
which they have to come up with answers. This requirement of of¬cial
open-mindedness can of course be satis¬ed through more than one set of
techniques for the gathering of information. While the adversarial struc-
ture of disputes and prosecutions in Anglo-American law involves one
such set of techniques, the very different structure of disputes and prose-
cutions in many civil-law countries involves a different set of information-
gathering techniques that can be just as suitable. Whatever may be the
exact procedures that are employed, legal of¬cials will not be perform-
ing their roles in an open-minded manner unless they do their best to
attune themselves to the speci¬cities of the situations on which they are
passing judgment. For that purpose, the participation of each party to a
legal dispute in the information-gathering processes is essential, whether
those processes be adversarial or inquisitorial. Since some key aspects of
the relevant facts may be missed if the parties do not have opportunities
to express their views, the provision of such opportunities is indispens-
able for the impartiality of a legal system™s workings. In the absence of
such opportunities, those workings may be placing certain parties at a
disadvantage simply because the legal of¬cials are being kept ignorant
of vital information. Also indispensable, clearly, are opportunities for
participation by witnesses or by other people who are in possession of
germane information. If such sources of information are excluded from
the processes by which legal of¬cials determine the jural consequences of
people™s conduct, those processes will be conjectural rather than open-
mindedly sensitive to complexities. Of¬cials who rely on surmises are
hardly doing their best to avoid arbitrariness.
Precisely what should count as the adequate participation of parties
and witnesses in legal decision-making is something that can vary quite
considerably from jurisdiction to jurisdiction. In most circumstances,
the parties should be free to avail themselves of expert legal advice and
assistance (which may have to be supplied for them if they are indigent).
However, the delivery of the advice and assistance can take many dif-
ferent paths, which will be affected by factors such as the adversarial or
Dimensions of Objectivity 61


inquisitorial character of the legal system in any particular jurisdiction.
Linguistic assistance for parties or witnesses, if needed, is plainly unfor-
goable (Lucy 2005, 11). Any inputs from such people will be of little value
if they are completely nonplussed because of linguistic barriers. Further
prerequisites of the ability of parties and witnesses to contribute satisfac-
torily to the processes of legal decision-making will loom larger in some
societies than in others, but they should be accommodated wherever they
are important.
A caveat should be entered here. Notwithstanding the general invalu-
ableness of the receipt of accurate and relevant information in a quest for
impartiality, the success of such a quest will sometimes depend on the
exclusion of certain information that is both relevant and accurate. As has
long been familiar in Anglo-American criminal law, some truths have to
be left unstated if the trial of a defendant is to be impartial and fair. Those
truths, though they are indeed truths, can be unacceptably prejudicial.
That is, the disclosure of such a truth engenders a high probability that the
jurors will become ¬xated on it and will fail to assess the other evidence
dispassionately. In many jurisdictions, for example, the commission of
past crimes by a defendant is not something that can be divulged to a
jury in most circumstances before the stage of sentencing. Information
about those previous misdeeds would be accurate and relevant (since
people who have perpetrated crimes in the past are much more likely
than other people to commit crimes in the present and the future), but
the presentation of it to the jurors might well induce some of them to
pay scant attention to the other evidence. Thus, in order to maintain the
impartiality of a trial as a whole, the withholding of information about a
defendant™s past convictions can be warranted.
This point about the nondisclosure of accurate and relevant infor-
mation is singularly pressing in some cases where the information is
of a general statistical nature. Suppose for example that 70 percent of
the drive-by shootings in some country are committed by young black
men, who make up only 2 percent of the country™s population (and only
12 percent of the total number of young men in the country). Were those
statistics to be imparted to a jury in a trial involving a young black man
accused of having engaged in a drive-by shooting, some jurors would
probably be led to focus unduly on the color of the defendant™s skin
and insuf¬ciently on the particulars of any exculpatory evidence. Hence,
62 Objectivity and the Rule of Law


although those data might be fully reliable, and although they are not
entirely irrelevant to the question of the defendant™s guilt or innocence,
the admission of them as evidence would detract from the impartiality
and fairness of the trial as a whole. In order to keep the jurors™ attention
trained on the speci¬cities of the case, the presiding judge should deem
the aforementioned data to be inadmissible. (Of course, even given the
average person™s ineptitude in drawing valid inferences from statistics,
one scarcely ought to conclude that all statistical data should be excluded
as evidence. When such data are accurate and relevant and not prejudi-
cial, the adducing of them as evidence is unobjectionable and pertinent.
Even when they may be prejudicial, the adducing of them as evidence will
be appropriate if their relevance to the question of a defendant™s guilt or
innocence is far more direct and weighty than in the case hypothesized
here.)
A second caveat should be entered. Although whimsicalness and
impulsiveness are to be eschewed in any serious process of decision-
making, there can occasionally be a place for aleatory procedures
(Duxbury 1999). Aleatoriness, in a limited range of settings, can be com-
patible with seriousness. Consider, for instance, the allocation of scarce
resources for medical treatment in a country with a nationalized health-
care system. Among a group of ailing people who are not distinguishable
on the basis of the sundry touchstones that are normally determinative of
medical priorities “ the gravity of one™s malady, the length of time spent
waiting for treatment, the remediability or alleviability of one™s malady,
one™s age and general health, the costs of a suitable course of treatment,
and so forth “ perhaps the best way of assigning resources for treatment
is the adoption of an aleatory procedure such as a lottery. A procedure
of that sort with effect among such people would not be arbitrary in any
pejorative sense, since it would not supplant any conclusive principled
basis for selecting among them. It would be strictly impartial, as it would
amount to an acknowledgment of the absence of any clinching grounds
for prioritization (grounds such as desert or need or social cost). Still,
although impartiality would be upheld rather than undermined through
the introduction of a random mechanism for prioritizing among the
people in the situation envisaged, my description of that situation has
presumably made clear that there will seldom be a role for randomness in
the decision-making activities of administrative of¬cials and other legal
Dimensions of Objectivity 63


of¬cials. Rarely will there be no conclusive principled grounds for select-
ing between people™s competing claims, and even more rarely will there
be no principled grounds at all for selecting between those claims. Yet,
since aleatory procedures are impartiality-preserving only where there
are indeed no such conclusive grounds, circumstances calling for those
procedures will be uncommon. Such circumstances will arise from time
to time, especially when only two or three people are involved; but they
will not arise frequently. As has been contended earlier in this chapter,
genuine indeterminacy in the law is exceptional rather than typical. What
is more, the adoption of a random procedure will be improper in some
settings even when there is no clinching basis for a decision. In a typical
adjudicative setting, where the task is to ascertain the legal consequences
of people™s conduct, and where (in common-law countries) an outcome
and its rationale will be endowed with precedential force until it is over-
ruled, the use of aleatory devices such as the ¬‚ipping of coins will be
inappropriate even in the few dif¬cult cases that hinge on legal questions
to which there are no determinately correct answers. A court should have
to explain why its ruling is correct, even if there are no grounds for main-
taining that that ruling is uniquely correct. Nevertheless, there can be
a limited range of other situations “ such as the medical-care situation
broached in this paragraph “ in which administrators might permissibly
and impartially resort to aleatory devices. The potential occurrence of
such situations is especially plain when we turn our attention from the
apportionment of bene¬ts and re¬‚ect instead on the apportionment of
certain burdens. Aleatory procedures for distributing some burdensome
responsibilities such as jury service are generally fair.
One further caveat should be registered. Although impartiality does
consist in detachedness, it does not in any way entail a lack of empathetic
understanding of human actions and intentions. Legal-governmental
of¬cials who have to pass judgment on countless instances of the conduct
of others will frequently not be able to perform their functions adequately
unless they grasp the typical mainsprings of human behavior and the
speci¬c mainsprings of particular individuals™ behavior. They have to be
able to identify themselves with other people suf¬ciently to fathom why
those people have acted in certain ways. Such identi¬cation does not in
itself constitute approval, and therefore does not constitute a departure
from impartiality. Though of¬cials may well countenance some of the
64 Objectivity and the Rule of Law


motivational patterns which they encounter, they may well deplore other
such patterns; the sheer feat of gaining an empathetic understanding
of those patterns, a feat that can take place in response to evil conduct
as well as in response to laudable conduct, is per se neither a condo-
nation nor a condemnation. It is fully consistent with impartiality. It is
indeed often essential for impartiality, since of¬cials cannot guard against
arbitrariness unless they base their decisions on all reasonably accessible
information that is both accurate and relevant. In many contexts, that
information squarely includes what can be gleaned through empathetic
understanding.

1.2.5.5. Why Impartiality?

Before we leave this exposition of impartiality, we should return to a key
question that was deferred earlier. Why is it so important that processes
of decision-making by public of¬cials should partake of objectivity qua
impartiality? In other words, what is the justi¬cation for requiring such
processes to be free of any signi¬cant biases and to be based on all reason-
ably obtainable information rather than on guesswork and caprices? Why
should legal of¬cials (especially in the judicial and executive branches of
government) be disinterested when making their decisions? This general
justi¬catory matter will receive more sustained attention in Chapter 2,
but a few remarks here will aptly round off the present discussion.13
Impartiality is important partly because of its epistemic reliability.
That is, insofar as decision-making is not swayed by self-interested moti-
vations or skewed by prejudices or clouded by ignorance, it is considerably
more likely to yield determinately correct results. When legal of¬cials are
called upon to arrive at decisions and to answer legal questions, they are
endeavoring “ or should be endeavoring, at least in a liberal-democratic
system of law “ to reach the decisions and answers prescribed by the
applicable legal norms. They are seeking to construe and effectuate those
norms in accordance with the terms thereof. For that end, a posture
of impartiality is crucial. If legal of¬cials allow their deliberations to
be in¬‚ected by their own sel¬sh interests or by invidious biases or by
uninformed impulses, they are substantially reducing the probability that
13 For some illuminating comments on this justi¬catory matter, see Coleman and Leiter 1995,
242“45.
Dimensions of Objectivity 65


those deliberations will culminate in correct decisions. They are thereby
shirking their legal responsibility to give effect to the laws of their sys-
tem and to foster the values embodied in those laws. Unless the laws
in question are iniquitous, the of¬cials are likewise shirking their moral
responsibilities.
Note that these observations about the epistemic reliability of impar-
tial decision-making do not overlook a fact already discussed in this
chapter: the fact that the of¬cials in virtually any system of law will be
legally empowered and permitted to exercise discretion in some of their
law-effectuating activities. Whether the norms of the system which con-
fer the discretionary authority on the of¬cials are explicitly formulated
or not, they exist as second-order norms with legally dispositive force. As
such, they themselves have to be construed and applied by the of¬cials
along with the other laws of the system. If the approach of the of¬cials to
those norms is marred by departures from impartiality, then the likeli-
hood of incorrect applications of the norms is greatly increased. Engaging
in such departures, the of¬cials are heightening the risk that the manner
or the occasion of some exercise of discretion will not be in keeping with
what they have been authorized to do. Impartiality, in short, is as impor-
tant for the epistemic reliability of of¬cials™ discretionary decisions as it
is for the epistemic reliability of their other legal decisions.
One major reason for insisting on legal of¬cials™ impartiality, then, is
focused on the outcomes of their processes of decision-making. Impar-
tiality markedly increases the probability that those outcomes will be
correct. Another major consideration in favor of impartiality is focused
on the processes of decision-making themselves. While helping to ensure
that legal norms take effect in accordance with their terms, the impar-
tiality of of¬cials additionally helps to ensure that the operations of a
legal system are fair and are perceived as fair. When a decision-making
procedure lacks impartiality, it is doubly injurious to every person D who
is disadvantaged by the upshot of the procedure. It is injurious because
the upshot itself is of course detrimental to D™s interests, but also because
the whole procedure bespeaks contempt “ or, at the very least, a dearth of
respect “ for D. That second type of harm would have been present even
if the outcome of the procedure had fortuitously gone in D™s favor. If the
absence of impartiality stems from the dominance of self-seeking moti-
vations on the part of the of¬cials involved, then their pursuit of their
66 Objectivity and the Rule of Law


own interests at the expense of D is a cavalier devaluation of him. That
devaluation is a baneful slight quite apart from the disadvantageousness
of the of¬cials™ ultimate decision. If the absence of impartiality is due to
prejudice against D, then the indignity in¬‚icted upon him is even more
noxious and palpable. If the absence of impartiality resides in a state of
uninformedness that could have been overcome without unreasonable

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