27.1 Introduction
Human rights instruments – and the case law interpreting them – often engage fundamental but contested concepts like dignity, equality, and liberty.Footnote 1 Claims to freedom of religion or freedom from discrimination are more value-laden and emotionally salient for judges than ordinary judicial fare. Emotional reactions, an instinctive sense of justice, or political leanings can tempt judges adjudicating these claims to depart from the disciplined practice of judging according to the rule of law and lead them to engage in subjective result-selective reasoning.Footnote 2
Why rail against result-selective reasoning? The prospect of arbitrary personal rule by judges is self-evidently bad. That is why our culture has adopted the norm of law by rules that encompass a set of general expectations, characteristics, or desiderata a well-functioning legal system must exemplify, and by which the exercise of state and judicial power is constrained.Footnote 3 This restraining ethos, attuned to the psychology of decision-makers and rooted in human nature, evolved to constrain discretionary power by judges, in view of their basic human weaknesses. Its broad elements work separately and together to safeguard ‘a stable, predictable and ordered society’ in which people are free to conduct their affairs shielded ‘from arbitrary state action’.Footnote 4
Several features of the legal system provide judges with opportunities – in the form of margins of judicial manoeuvre – to engage in result-selective reasoning. Section 27.2 of this chapter focuses on the powers the doctrinal state of play gives judges in the deliberative process.
Section 27.3 discusses the psychology of deliberation and what it reveals about the cognitive and emotional flaws of human reasoners, including judges. Advocates can exploit these flaws using legal rhetoric. The flaws are implicitly recognized in the constraints placed on judges by both the high aspirations of the rule of law and by its more mundane specifications in the procedural and substantive law governing the adversarial system,Footnote 5 such as the rules of evidence, the elements of the causes of action, the requirement to give reasons for decision, rights of appeal, and governing concepts such as stare decisis. These seek to stave off departures from disciplined adjudication.
Questions about whether these limits have been observed must themselves be resolved according to established methodologies that are subject to judicial review. But none can adequately safeguard against the personal failure of judges to abide by the internal constraints of judicial morality, which I call the modes of judicial responsibility. The modes aim to counterbalance the dynamics of adjudication that can undermine a judge’s resolve to do justice according to law, as Section 27.4 explains. The modes are first, do no harm, and then, do the right thing, for the right reason, in the right way, at the right time, and in the right words. The quest for consistent adjudication that underpins justice and public support for courts as institutions is hampered when judges neglect these moral commitments.
27.2 Margins of Judicial Manoeuvre
Judges can be tempted to depart from the disciplined practice of judging according to law and into subjective, result-selective reasoning. I discuss six margins of manoeuvre built into the constraints imposed by the rule of law, which provide the opportunity for such departures: the basic nature of legal disputes, the morphing of rules into standards, the indeterminacy of human rights texts, the enhanced authority of first-instance judges, the development of hierarchies of rights, and proportionality analysis.
27.2.1 The Basic Nature of Legal Disputes
The most engaging human rights cases are those underdetermined by law and rationally resolvable either way. Almost every difficult legal issue has a powerful driving force on each side.Footnote 6 Sometimes they conflict visibly in the form of majority decisions and strong dissents.
Human rights claims often turn on the interpretation of human rights instruments and therefore engage the ‘dueling canons’ of statutory construction. The first of Karl Llewellyn’s twenty-eight pairs of thrusts and parries still plays out (as do others): ‘A statute cannot go beyond its text’ versus ‘To effect its purpose a statute may be implemented beyond its text.’Footnote 7 Human rights cases often hinge on similar arguments, with each side making policy thrusts reliably embedded in sound doctrine.Footnote 8 This is what gives tension, energy, and vitality to the enterprise.Footnote 9 Consider the perennial conflict between liberty and equality, especially in relation to freedom of religion. There are often real competing goods at stake.
27.2.2 The Evolution of the Legal System Away from Prescriptive Rules
Effective modern government depends on both rules and discretion, but increasingly on discretion. Neither legislatures nor courts are institutionally capable of ‘supplying policy change at the necessary rates’ in a timely way to cope with the emerging complexity of life in our technological age,Footnote 10 which explains the increasing scope for judicial discretion.
The current taxonomy of legal norms – in declining order of prescriptiveness – is rules, standards, and policies, with rules morphing into standards sanctioned by the requirement for increased appellate deference.Footnote 11 There is a trend away from legislatures and appellate courts setting exceptionless rules to be applied mechanically and towards more open-ended standards giving more discretion to first-instance judges. There is also increasing resort to more commodious ‘principles’ as an alternative.
27.2.3 Interpretation and Application of Constitutional and Human Rights Texts
A cascade of inflection points governs the interpretation and application of constitutional and human rights texts. While I use Canada as a model, most liberal democracies could be configured in a similar analytical schema. I address the nature of legal language, the indeterminate language of constitutional and human rights texts, the use of unwritten constitutional principles, and the emergence and use of ‘Charter values’. These inflection points are margins of manoeuvre that give judges opportunities to indulge in subjective, result-selective reasoning and to do so without obvious error.
27.2.3.1 Nature of Legal Language
H. L. A. Hart observed that legal language has an ‘open texture’ and ‘fringe of vagueness’. There is no escaping his argument that: ‘Nothing can eliminate this duality of a core of certainty and penumbra of doubt when we are engaged in bringing particular situations under general rules.’Footnote 12 While there are clear cases, some prove indeterminate. We operate under two connected handicaps: our relative ignorance of the true factual state of affairs and our relative indeterminacy of aim.Footnote 13 In this situation: ‘the judge both makes new law and applies the established law which both confers and constrains his law-making powers’.Footnote 14 This is what judges do where they discover or create open texture in the language to be interpreted.
27.2.3.2 Indeterminate Language of Constitutional and Human Rights Texts
The language of human rights instruments is especially open-textured. The Canadian Charter of Rights and Freedoms, for example, speaks of many rights and freedoms. Among the fundamental freedoms are conscience and religion, thought, belief, opinion and expression, peaceful assembly, and association.Footnote 15 The legal rights include the ‘right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’.Footnote 16 There are more specific rights against ‘unreasonable’ search or seizure,Footnote 17 and against being ‘arbitrarily’ detained or imprisoned.Footnote 18 Section 15 of the Charter prescribes several equality rights prefaced by the statement: ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.’ Note the open-textured qualifications throughout.
Frederick Schauer observes: ‘Some terms, like “liberty” and “equality,” are pervasively indeterminate.’ He explains the situational malleability: ‘It is not that such terms have no content whatsoever; it is that every application, every concretisation, every instantiation requires the addition of supplementary premises to apply the general term to specific cases.’Footnote 19 The terms of human rights instruments are rarely understood as rules, nor are they quite as open-ended as principles. Because they are incomplete settlements, they are more like standards, but standards that vary contextually in degrees of prescriptiveness.
27.2.3.3 Unwritten Principles
Human rights instruments, usually framed in general terms, often do not expressly address the matter in issue. The court sometimes digs for something more basic: the unwritten, underlying principles. These came to the fore when the Supreme Court of Canada (SCC) considered whether Quebec could unilaterally secede from Canada. The court warned that a ‘superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading’.Footnote 20 Instead, ‘a more profound investigation of the underlying principles that animate the whole of our Constitution’ is necessary. The court articulated several unwritten constitutional principles: ‘federalism, democracy, constitutionalism and the rule of law, and respect for minorities’. This list of unwritten principles is not exhaustive, and each is plainly capable of significant deconstruction on the facts of a case.
27.2.3.4 Emergence of Charter Values
The SCC took a similar approach in adopting the concept of ‘Charter values’. As yet, these values lack definition and doctrinal content, but the basic idea can be discerned in the ways the court has used Charter values to interpret the Charter, develop the common law, and interpret statutes.Footnote 21
Interpreting the Charter.
Chief Justice Dickson endorsed a purposive approach to Charter interpretation: ‘To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies.’Footnote 22 The purpose is to be understood ‘in the light of the interests it was meant to protect’.Footnote 23 This excavation exercise requires the court to consider ‘the language chosen to articulate the specific right or freedom, … the historical origins of the concepts enshrined, and where applicable, … the meaning and purpose of the other specific rights and freedoms’.Footnote 24
Developing the Common Law.
Even though the Charter does not apply to private disputes, the SCC has said that ‘the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution’.Footnote 25 In a case about freedom of the press and libel laws,Footnote 26 the court said: ‘Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.’Footnote 27
Statutory Interpretation.
The SCC has usually been careful to limit the role that Charter values play in statutory interpretation to instances in which the legislative text is ambiguous, when multiple meanings are available that plausibly accord with legislative intent.Footnote 28 The court must choose which to endorse. The general rule is that the legislature is presumed to enact legislation consistent with the Constitution. The application of Charter values ‘cannot be used as a freewheeling deus ex machina to subvert clear statutory language’.Footnote 29 Charter guarantees of named rights and freedoms are, self-evidently, different from values, with different juridical functions and properties: ‘Charter values are not Charter rights by another name or in a different setting; they are a different juridical concept.’Footnote 30 Nor are rights values by another name.Footnote 31
The Charter values that have emerged thus far include liberty, human dignity, equality, autonomy, fairness, expressive freedom, and privacy,Footnote 32 and the ‘cardinal values’ in Oakes: ‘respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society’.Footnote 33 Some academics have encouraged tribunals with discretionary powers, and inferentially courts, to use recognized Charter values ‘or, potentially, a novel value analogous to an existing Charter value’Footnote 34 in discretionary decision-making.
I have briefly discussed the inflection points presented to judges by the nature of legal disputes, the systematic conversion of rules into standards, the nature of legal language and the indeterminate language of human rights texts, the evolution of unwritten constitutional principles and the emergence of Charter values. These inflection points open up areas of choice and discretion – margins of judicial manoeuvre – beyond Hart’s central core of certainty and penumbra of doubt. They empower especially first-instance judges.
27.2.4 Enhancing the Authority of First-Instance Judges
In Bedford and Carter, the SCC made two moves that materially enhance the authority of first-instance judges.Footnote 35 In Bedford, the trial judge found Canada’s prostitution laws to be unconstitutional because they limited the right to security of the person. In Carter, the trial judge struck down the Criminal Code provisions criminalising assisted suicide because they limited the right to security of the person of competent adults who are suffering intolerably and cannot put an end to it without assistance. Both trial judges found, despite contrary SCC authority, that the limits could not be justified under proportionality analysis. The SCC agreed.
The SCC’s first move in Bedford and Carter was to relax the strictures of binding precedent in constitutional cases. In Carter, the court said that ‘stare decisis is not a straitjacket that condemns the law to stasis’.Footnote 36 Trial courts may now depart from precedent ‘in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”’.
The SCC’s second move was to require appellate courts to defer to trial judges’ findings on both adjudicative and legislative facts. In Bedford, the court held for the first time that appellate deference also ‘applies to social and legislative facts as much as to findings of fact as to what happened in a particular case’.Footnote 37 This second move has more practical significance because it provides trial judges with enhanced, much less reviewable, margins of manoeuvre. The admissibility of evidence is uniquely in the trial judge’s bailiwick, as is the determination of its relative weight.
A party may lead evidence material to a fact in issue that is not otherwise subject to an exclusionary rule. In human rights and constitutional contexts, evidence of social and legislative facts looms large. Social science evidence arrives in the form of sworn statements, expert reports, and live evidence. Increasingly this evidence is in narrative form, even extending to mere anecdotes. For example, as Dwight Newman noted with asperity, Bedford turned on the evidence of ‘one wealthy Toronto dominatrix’ that overcame evidence the law was ‘designed in large part to protect those caught in street prostitution from violent pimps’.Footnote 38 Carter turned on heart-rending end of life stories. More mundanely, Fraser, a case about sex discrimination, turned on anecdotal evidence about the pension situation of women who elected to job-share.Footnote 39
The key point is that the margins of manoeuvre converge functionally in the reception of trial evidence, particularly in the form of narrative. Trial judges are inclined to exercise discretion to let the stories be told, both by the claimant and more broadly. But social science can be as much ‘junk science’ as forensic evidence,Footnote 40 and should be handled with the same rigour. In a legal system ‘vulnerable to unreliable expert evidence’, the control is the trial judge, who is ‘the ultimate gatekeeper in protecting the system’.Footnote 41
Finally, information can arrive in the form of Brandeis briefs containing influential material not proven in evidence. Justice Rowe observes that the result-selective reasoner ‘does not ask how a new source bears on the question as traditionally framed, as the point is to reframe the question’.Footnote 42 He calls for the steady application of ‘established methodology’ in preference to emerging ‘enthusiastic ad hockery’.
27.2.5 The Emergence of Hierarchies
The SCC has not yet established a consistent methodology for resolving conflicts between Charter rights.Footnote 43 Early on, Chief Justice Lamer said, ‘When the protected rights of two individuals come into conflict … Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.’Footnote 44 While the court should not be too quick to find true clashes between rights, are these not inevitable? Basic rights cannot always be ‘regulated’, ‘adjusted’, or ‘contoured’ to avoid conflicts.
Several approaches have emerged. The most rigorous is the Dagenais/Mentuck frameworkFootnote 45 deployed in R. v. N.S.,Footnote 46 in which the court considered whether a witness under cross-examination could be ordered to remove her veil contrary to religious freedom:Footnote 47
1. Has there been an infringement of a Charter right, and if so, was it more than trivial and insubstantial?
2. Is there a competing Charter right on the other side of the case?
3. If so, are there alternative measures by which both Charter rights can be accommodated?
4. If accommodation is not possible, then do the salutary effects of the challenged action on one right outweigh the deleterious effects on the other right? Or is it proportionate?
The second approach is ‘balancing’, in which a minor limit on a right is overborne or defined away.Footnote 48 The third is ‘spectrum analysis’, which assesses whether the limit complained of is at the core of the right or some distance away from it.Footnote 49
The fourth approach is the ‘line-drawing’ exercise undertaken in the first Trinity Western University (TWU) appeal against the British Columbia College of Teachers in 2001.Footnote 50 TWU, a private evangelical Christian institution, required students to adhere to a community covenant proscribing sex outside of heterosexual marriage. The contention was that the covenant discriminated against lesbians and gays.
The SCC rejected the College of Teachers’ argument that it could deny accreditation to teachers trained by TWU based on the covenant. The College failed to prove TWU graduates would discriminate against lesbians and gays in their employment in public schools. The court said: ‘The proper place to draw the line in cases like the one at bar is generally between belief and conduct.’Footnote 51 In the court’s view: ‘The freedom to hold beliefs is broader than the freedom to act on them.’Footnote 52
But drawing a line between belief and conduct cannot resolve every religious freedom case. Applied categorically, it would remove Charter protection from much religious conduct. For example, the distinction between belief and conduct was not available in Multani, where the carrying of the kirpan was itself a religious act.Footnote 53 In such a situation, belief and conduct are fused.
Years later, the Law Society of British Columbia withdrew its accreditation of TWU’s prospective faculty of law entirely because of the covenant.Footnote 54 In 2018, the majority of the SCC treated equality as an overweening right and abandoned the approach it took in supporting the TWU Faculty of Education in 2001. The primary move was to equate rights and values, posing TWU’s Charter right to freedom of religion against the Charter value of equality for prospective gay and lesbian students, with the latter prevailing. The dissent observed that an approach that permits Charter values to trump Charter rights is problematic.Footnote 55
The most recent TWU outcome reflects the reality that certain conceptions of rights or values are imperialistic, especially equality. Peter Westen took aim at this tendency in his seminal article:
[A]lthough equality is derivative, people do not realise that it is derivative, and not realising it, they allow equality to distort the substance of their decision making … . [I]t gives an aura of revealed truth to whatever substantive values it happens to incorporate by reference. As a consequence, values asserted in the form of equality tend to carry greater moral and legal weight than they deserve on their merits. That is why arguments in the form of equality invariably place all opposing arguments on the ‘defensive’.Footnote 56
Westen argued that equality can serve as an effective rhetorical proxy for the particular treatment the advocating party wants to claim as worthy of equality protection. Charter values are almost empty vessels, proxies for the underlying interests of the parties engaged in the dispute. Analytically, it is those interests that should be evaluated.Footnote 57 Even so, Schauer argues that the need for a supplementary premise does not render the concept of equality superfluous, just insufficient.Footnote 58 At the pinnacle of the hierarchy sits equality, with all its amorphous attributes.
27.2.6 Proportionality Analysis
Once a claimant proves that legislation or a decision limits a guaranteed right or freedom, the state must justify the limit. In Oakes, the SCC adopted proportionality as the test for determining whether a limitation on a Charter right is demonstrably justified under section 1 of the Charter.Footnote 59
The state must first establish that the legislation is ‘in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society’ and is of ‘sufficient importance to warrant overriding a constitutionally protected right or freedom’.Footnote 60 The second stage is the proportionality determination. By means of three inquiries, the court assesses whether the means chosen by the legislature to accomplish its ends are: first, rationally connected with the ends; second, minimally impairing; and third, proportional as between the deleterious and salutary effects of the law.Footnote 61 The measures that limit the claimant’s Charter rights are the means assessed against the legislature’s ends in determining whether it is just for the law to require some individuals to bear the negative effects of the measures in order to secure the positive effects for the common good.
The complex of considerations used to determine whether a limit is justified could also be called Charter values. These considerations are truly broad, not limited to human goods that underlie the enumerated Charter rights, and not automatically subordinate to them.Footnote 62 Schauer argues: ‘We need some way to conceptualize not only the way in which rights may at times compete with other rights, but also, and more importantly, the way in which rights are superior to but neither trumping nor excluding of non-rights-based interests and other considerations.’Footnote 63
A fair argument can be made that the now normative Oakes framework was designed in part to structure the analysis under section 1 in order to constrain and discipline courts and render the exercise of judicial discretion in the balancing step intelligible and transparent. Even so, proportionality analysis is unusually open to result-selectivity and minimally receptive to discipline.
The core problem with the proportionality determination is that the detriments to be suffered by individuals and groups as against the benefits that might accrue to the common good are usually incommensurable.Footnote 64 There is no common denominator for evaluating and balancing the competing claims of those affected by a law or decision against any benefits to the common good. Nonetheless, subject to rare judicial forbearance on grounds of justiciability or ripeness, the court must declare an outcome. The final proportionality decision often appears as obscure alchemy that culminates in the bald announcement of a result.
To sum up, against the constraining effects of the rule of law are the countervailing pressures and the inflection points set out above. Each requires judges to make choices and provides opportunities for result-selective reasoning. Margins of judicial manoeuvre are good and necessary, but they come with that risk. The choices underpinning decision-making in all these instances implicate the psychology of judicial deliberation, to which I now turn.
27.3 Advocacy and Judicial Psychology
Advances in cognitive science and psychology have led to an arms race between advocates and judges of which judges are barely aware. These advances have equipped advocates with more sophisticated persuasive techniques.Footnote 65
The psychology of deliberation is complicated.Footnote 66 Four elements stand out and, in the hands of a skillful advocate, can deflect good judging. First, human cognition favours intuitive responses because they are energy-efficient – avoiding the effort of deliberation – and because such responses are rewarded by a hit of pleasure.Footnote 67
Second, the research shows ‘even though judges are experienced, well-trained, and highly motivated decision makers, they are vulnerable to cognitive illusions’.Footnote 68 Cognitive illusions are biases in human thinking that come out particularly in intuitive decisions. The word ‘bias’ may seem loaded because it is associated with ‘discrimination’. However, I use the term in the psychological sense as a cognitive orientation, not attached to discrimination in the human rights sense. The most troublesome for judges are the halo effect, framing effect, representative heuristic, hindsight bias, expert evidence bias, affect heuristic (emotions), and confirmation bias.Footnote 69
Of these, confirmation bias is one of the ‘most robust and ineradicable’, says psychologist Jonathan Haidt. We do not ‘look for evidence on both sides and then weigh up which side is more likely to be true. Rather, we start with an initial hunch and then we set out to see if we can find any evidence to confirm it. If we find any evidence at all, we have confirmed the proposition, and we stop thinking.’Footnote 70 Haidt asserts that this is ‘one reason why it’s so valuable to have an adversarial legal system – somebody is appointed on each side to try to disconfirm the arguments of the other side’.Footnote 71
Third, narrative allied to emotions is especially persuasive.Footnote 72 The evidence is that ‘judges – like most adults – do not easily convert their emotional reactions into orderly, rational responses’.Footnote 73 When emotions take over, they can distort deliberative reasoning, transforming it into motivated cognition or motivated reasoning.Footnote 74
Highly effective advocates – court whisperers – are increasingly presenting evidence in human rights and constitutional cases in narrative form, using emotional anecdotes, stories, metaphors, and analogies as tools because they are engaging.Footnote 75 Human beings seem to find enormously seductive anything that starts, actually or notionally, with the words, ‘once upon a time’. Anecdotal evidence was compelling, for example, to the trial judges in Bedford (prostitution) and Carter (assisted suicide).
For judges, narrative reasoning reduces ‘computational complexity’ because once engaged, the ‘litigation focuses on the plausibility of coherent stories advanced by the parties rather than on discrete items of evidence’.Footnote 76 Narratives organise information in a comprehensible way and become the building blocks of judicial reasoning.
There is nothing inherently problematic in narrative reasoning; it is basic to human cognition. But narrative reasoning works in part by evaluating ‘the litigant’s story against cultural narratives and the moral values and terms these narratives encode’.Footnote 77 These have been absorbed by the judge and may be triggered by advocates, who use ‘narrative transportation’ – when a listener is affectively ‘transported into the world of a story’ – as a persuasive technique. Advocates hope that narrative transportation will change the judge’s ‘emotions, cognitive processing and beliefs … [and] attitudes, intentions, and conduct’ and set a pathway to victory.Footnote 78 Conventional metaphors induce judicial comfort and reliance on intuition, while novel metaphors induce deliberation.
Narrative reasoning can help smooth the judge’s way past inflection points that arise in any case, from the elements of the cause of action to the evidentiary details and to the application of law. This is its power. What makes human rights cases especially fertile ground for rhetorical manipulation is not just the emotional content but also the moral nature of the issues they engage, the evidence adduced, and the margins of judicial manoeuvre opened by the play in the doctrinal joints.
Consequently, judges should be especially cautious in assessing the evidence and arguments in narrative-based appeals to avoid seduction into error. Linda Edwards notes: ‘If the outcome of a case depends, in part, on what story captures the court’s imagination, judges badly need a well-honed narrative sensitivity.’Footnote 79 She adds: ‘In judicial decision-making, an understanding of how narrative creates and constrains legal argument will produce judges far more skilled in evaluating competing arguments and selecting wisely from among them.’Footnote 80 Just so.
27.4 Modes of Judicial Responsibility
I have argued against the mischief of subjective and arbitrary result-selective judicial reasoning, noting, however, that the margins of judicial manoeuvre provide opportunities for such reasoning. Advocates seek to use those opportunities to their advantage by targeting the psychological flaws in judicial deliberation. The necessary incidents of the rule of law, designed to constrain judicial reasoning within a rule-based structure, are not sufficient to keep judges hewing to the disciplined practice of judging according to the rule of law. Sound judicial morality is also required.
At the outset, I advanced a set of moral commitments dubbed the ‘modes of judicial responsibility’: do no harm, and do the right thing, for the right reason, in the right way, at the right time, and in the right words. Without the moral commitments embedded in these modes, justice will prove elusive.
Departures from right reasoning have to do, at bottom, with judicial desires, emotions, and motivations such as sympathy, disgust, ambition, and moral and political leanings. The modes of judicial responsibility seek to stave off these bad effects. What is required is the development of judicial character in order to control impulses. More soberly, the judge who fails to abide by the modes becomes a negative exemplar to others.
27.4.1 The Moral Dimension
What causes judges to miss the target by a small or wide margin? And what can serve as an effective preventative?
Judges arrive at every case with the formative baggage of their lives, including the influence of their culture, all of which ‘molds the orientation of [their] intelligence’Footnote 81 so that what ‘emerge[s] in consciousness [is] already patterned, and the pattern is already charged emotionally’.Footnote 82 The Delphic oracle’s perennial admonition was: ‘Know thyself.’ All mature adults need to develop a degree of personal self-transparency, judges more so because of the power they have over others. They need to know and understand their inclinations, dispositions, traits, and emotional soft spots, which they must monitor and curb to maintain impartiality.Footnote 83 Judges must guard against their ‘bias blind spot’, in which they recognize the bias in others but not themselves.Footnote 84
Self-knowledge is essential for an ‘emotionally well-regulated judge’.Footnote 85 This is Terry Maroney’s modest replacement for Olympian detached objectivity, one that is reasonably attainable by real judges. Judges must reflect on their own make-up by self-questioning on what they must step back from and hold on to in hearing cases and dispensing justice. Reflection engages judicial conscience, which should be resistant to sophistries and rationalisations.
27.4.2 Attending to the Modes of Judicial Responsibility
Each mode of judicial responsibility is pregnant with meaning and is rooted in natural law morality.Footnote 86 Advocates know them, at least implicitly, and will use rhetorical techniques to either entrench judges in a particular mode or push them into an intuitive response when it would be advantageous to discourage judicial deliberation. Indeed, each of these modes provides advocates on both sides with fodder.
27.4.2.1 Do No Harm
Judges should attend to the possible collateral effects of a decision to ensure that it does no harm. A judge might be tempted to allow principles to act as a form of algorithm so that the consequences flow automatically without further conscious attention. A decision that, for example, seems to merely tweak a human rights standard should not have unintended or unforeseen collateral consequences. Moreover, the quality of judicial actions or choices should be assessed in part by their effectiveness and their efficiency.Footnote 87
27.4.2.2 Do the Right Thing
Doing the right thing is about the substantive content of the decision and fidelity to the law. This means considering the relevant rights and obligations of the parties and the outcomes available in practice, case law, policy, regulation, statute, human rights instruments, or the constitution. This is the rule of law in action.
The twin problems of going too far or not far enough must be assessed. A judge might go too far, for example, by making unnecessary factual findings, or by inflating a factual aspect of particular interest to the judge, by making legal pronouncements that are not necessary to resolve the case, or by granting an excessive remedy.
What might explain this inclination to go too far? A judge could be impulsively individualistic and impatient, by not accepting the institutional limits on judicial authority and arrogating a legislative role, or by actively seeking to advance a particular approach to the law in resolving disputes engaging public policy.Footnote 88 But judicial impatience can risk or delay the accomplishment of a good end. A judge who senses that this inclination is at work should reflect on the underlying motivation. Giving due weight to viewpoint diversity and the need for refinement in the law is one thing. It is another to step out merely to be prideful, such as when a judge acts to be seen personally as innovative, brash, edgy, or a bold leader prepared to go it alone. Such a move can also be counterproductive if it provokes a backlash that impedes progress.
However, justice sometimes demands judicial innovation. An example outside the human rights sphere is Donoghue v. Stevenson, which initiated the modern law of product liability.Footnote 89 The task of discernment is not easy for a judge to execute well; the call for prudence and humility can result in analysis paralysis that stifles necessary innovation. There is a tension.
The opposite – stopping short – is also problematic. A judge should resist being too economical of effort, a procrastinator, a flincher, hopeless, or even lazy. Doing the right thing excludes merely short-term solutions that do less than what the situation requires. Judicial minimalism is often a virtue, but a judge should not stop short. Rather, a judge should be perseverant and clear-headed, disciplined and diligent.
Some examples: A panel with a heavy docket might grasp unreasonably at quick relief by dispatching an appeal summarily when more is warranted. A trial judge could decline to deal with an issue because the disposition of another issue has rendered it redundant. A human rights example would be where the challenged law is found not to limit a protected right so that there is no need to perform the proportionality analysis. But, if the appeal court reverses this trial disposition, then it is in no position to decide the case because the necessary factual findings have not been made by the lower court. This deficiency then transmits up the appellate chain. A variation: the trial judge finds a limit and then finds the law disproportionate. The appeal court disagrees, finds no limit, and declines to do the proportionality analysis. Both outcomes would give the apex court freer rein where some more careful thinking might have placed warranted constraints on, or offered analytical assistance to, the apex court.
27.4.2.3 The Right Reason
A judge should do the right thing for the right reason. This mode reflects the adage that the end does not justify the means, in line with Kant’s categorical imperative to never treat a person as a mere means to an end.Footnote 90
Consider T. S. Eliot’s apposite rhyme in the play Murder in the Cathedral: ‘The last temptation is the greatest treason, to do the right thing for the wrong reason.’ The crucial insight is that bad means corrupt good ends. The judicial equivalent is the well-worn expression that hard cases make bad law. If the law is distorted to get to what seems to be the right result in the particular case, then the distortion lives on to do damage in future cases and erodes the institution. This is the corrupting effect of result-selective reasoning.
From the substantive perspective, rule-based reasoning is ‘essential to the judicial function in that it forces judges to abide by a hierarchy of reasons, and specifically, to yield to higher order considerations even when they feel that doing so leads to suboptimal or unwise outcomes for the case at hand’.Footnote 91 There is no doubt that rule-based reasoning has primacy in the way decisions are framed and explained. Once narrative reasoning has worked its magic, the judge is left to write the decision and must conform to the rule-based reasoning paradigm in form and content. There is an expression among judges – sometimes a decision ‘just won’t write’ – signifying an insuperable constraint on the outcome. Difficulty in articulating the chain of reasoning should provoke reflection and cause a judge to look again, particularly at the evidence and arguments that could disconfirm the outcome the judge was writing to justify. If deliberative reason can find no valid chain of reasoning to the intuitive outcome, then the outcome must be changed because it is wrong.
In more situational terms, a judge should not act only to satisfy an emotional desire. Sometimes, circumstances cause tension that a judge is tempted to dispel by acting precipitately, impulsively, and not for any intelligible good. Conversely, a judge might be motivated by an aversion to act or not to act because of repugnance, fear, and other negative feelings, including the desire to avoid conflict and criticism, anxiety about obstacles, and fear of failure. Judges should never give in to the impulse to be destructive, which can reflect negative emotions such as anger, hostility, vindictiveness, or sheer nihilism. An example would be gratuitously trashing a witness’s or party’s reputation.
In each of these instances, emotion drives conduct. Instead, judges should strive to be emotionally well-regulated, guided by self-control and self-discipline, showing patience, courage, fortitude, and perseverance. The norms of basic decency also have a role to play.
Finally, a judge should not be partial to counsel, witnesses, the parties, or interested bystanders or authorities. Favouritism, prejudice, or bias can all deflect reason.
27.4.2.4 The Right Way
The right way is about the process leading to the decision. Proper process matters. The legitimacy of an otherwise just decision is undermined if the process was materially defective. Examples include inadequate notice, the lack of opportunity for meaningful participation, and the improper admission or exclusion of evidence, which leaves the losing side to wonder if the disputed evidence unjustly made all the difference. A judge might give effect to an argument not made by the parties, and on which they were given no opportunity to make submissions, or might use private information such as knowledge from personal experience. Such procedural flaws can impair the legitimacy of a decision, even the right one.
27.4.2.5 The Right Time
Decisions must be made and reasons issued at the right time. The aphorism is that ‘justice delayed is justice denied’. But deciding too soon can also be problematic, such as when a judge does not suspend judgement long enough to hear the case out and jumps to conclusions. Advocates do try to prompt or forestall such intuitive leaps. More substantively, in constitutional or human rights cases, sometimes the issue is not yet ripe for decision or the available evidence in the instant case will not sustain a definitive determination. Deciding an issue too soon can distort the orderly and reasonable development of law.Footnote 92
27.4.2.6 The Right Words
Decisions must be expressed in the right words.
Substantively, as part of their duty to account, judges must give adequate reasons that explain the decision, usually in writing, which reflect intelligibility and transparency, leading to justification.Footnote 93 The primary audience is the loser, who is entitled to know why the decision was reached, and why the proffered evidence and arguments were rejected.Footnote 94 The public also has an interest.
Rule-based reasoning has primacy in the way decisions are framed and explained. It sometimes, I would say rarely, places an insuperable constraint on the outcome. Judges want their decisions to be, and to be seen as, persuasive. The reasoning process can lead to an unconscious tendency to overstate the reasons in support of the decision and to discount and understate countervailing reasons. This can best be seen where there is a strong dissent; both sides manifest the same degree of unwavering certainty supported by opposed facts and law in the same case.
While most decisions actually turn on a limited number of factors, in writing decisions, judges sometimes ‘embellish the opinions, a practice known as opinion padding’ in order to persuade.Footnote 95 The idea is that ‘recruiting arguments to provide additional support to the decision makes the opinions seem even more coherent, unavoidable, and singularly correct’.Footnote 96 But opinion padding is ‘a vacuous ritual that harms the integrity of the judicial endeavour’.Footnote 97 It is especially pronounced where the stakes are high, as in human rights cases.
A decision can be written in language designed to advance a perspective or to attract media attention. Colourful factual findings can tell a better story, and added spin can draw public notice. But this is usually regrettable judicial self-indulgence. Or a judge can use harsh language to criticise a witness, party, or position. Appellate courts can use harsh language regarding lower court judges. Dissents can pillory majorities. Here, the use of intemperate language in a decision might signal a bad motivation better kept in check.
Finally, personal authenticity and integrity should stand in the way of judges engaging in the use of cognitive illusions or rhetorical manipulation in writing their reasons.
27.5 Concluding Comments
I began with the observation that human rights instruments and case law engage fundamental but contested concepts such as dignity, equality, and liberty. The danger is that judges can be tempted or pressed to depart from the disciplined practice of judging according to law and indulge in result-selective reasoning. But judges must grasp the moral nettle and do justice according to law, especially in fraught cases. The modes of judicial responsibility, which are a work in progress, aim to counterbalance the undermining dynamics of adjudication as reflected in the margins of manoeuvre. An additional mode – worth exploring further – is that judges should self-correct for bias, including the presence of personal prejudices.Footnote 98
The principled approach is to attend to the evidence, ascertain the applicable legal rules and principles, find the facts relevant to the issues, apply the law, and reach the just result that the law either directs or permits in the circumstances. In the end, although a judge might have been persuaded by narrative, the decision must be capable of being honestly written, and actually be written, in the form of rule-based reasoning that can survive careful scrutiny.
Commitment to judicial method, evolved to keep pace, is essential. If justice is to be done and be seen to be done, then judges must accept, instantiate, and reflect in aspiration, conviction, and performance three core judicial orientations: to be personally impartial, to resist the temptation to engage in result-selective reasoning, and to resist acceding to intuition by suspending judgement and maintaining deliberative engagement from the beginning to the end of the case.
It is axiomatic that judges are not free to resolve legal questions based on personal convictions about the requirements of justice or morality. In Benjamin Cardozo’s words: ‘The judge is not the knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness…. [The judge] is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life.’Footnote 99 Judges must apply the law consistent with their oaths of office, which they take seriously in my experience. The modes of judicial responsibility affirm this commitment.
