Legal Romanticism, Part 2 of 6
The judge – such is a common view – in deciding what is right, determines what is wrong, too. Similar to field researchers observing natural phenomena, e.g. biologists, the judge ought to look at legal disputes as an unattached spectator. She or he should ideally represent the neutral perspective on both conflicting sides. The judicial decisionmaker acts as the actual and realised tertium comparationis to the conflicting parties, the “third” according to which a comparison of interests is made. The judge’s propositional statement of how the facts of the case are to be considered and of how the case fits in the nexus of preceeding cases is, at the same time, always a claim of truth: This is the very nature of every propositional utterance.
Consequently, the propositional statement separates the conflicting parties into winners and losers, and their conflicting interests as the essence of every legal development and dispute are divided into something which is deemed worth preserving, and some other which is not. This means, from a broader perspective, that the dispute, evolving from socio-economic conditions, is translated and reduced to legal claims (one could speak of elements in a certain dynamic), which then get evaluated, departmentalised and named as “valid” and “invalid” demands. Certainly, referring in this manner to the structural “reduction of complexity” – a term coined by the legal-sociologist Niklas Luhmann – aims at evoking associations with the work of a natural scientist, like the biologist mentioned above. Parallel to the judge, the biologist extracts and removes a plant as the object of her or his enquiry from its natural environment, cuts off a huge amount of leaves, branches or roots in order to examine and evaluate the function of the specific part of interest. Yet legal claims, in contrast to biospheres, do not exhibit the regenerative nature of plants. As stated above, a decision based on either right or wrong eventually cuts off claims from any chance of recognition whatsoever.
While this is a simplified description of judicial proceedings, it emphasises the issue of how and in which role a judge should approach legal disputes. To begin with, the position of a judge, it seems, intuitively demands some kind of authority as a basis for decision-making. Yet this already stands for a highly problematic and very modern concept, which by virtue of its very nature can never be authorised or justified through the legal order itself. The legal authorisation of the authorisation to judge will always – within the framework of a rational legal order – evoke ad infinitum the question of the authorisation of the authorisation. With this problem of a posited first and last authority, i.e. causa prima, the supra-legal ascription of authority as such automatically places the judge outside the conflict at hand. Structurally, she or he must come into existence as unattached, neutral and objective. Considered psychologically or anthropologically, this arguably is a requirement which is beyond, above or below the essence and the possibility of man as an emotional and sympathetic being.
Interestingly and paradoxically, one possible alternative to this “either-or,” this “neutral spectator” mentality, can be traced back to a man who saw himself primarily as a devoted natural scientist. In the fifth book of the Nicomachean Ethics, Aristotle describes the good judge to be a “mesidíos.” This term is a variation of the Greek word for the middle or the centre, tò méson, of things or relations. The mesidíos, as defined by Legal Romanticism, stands not only for the modern mediator, i.e. a person who links and mediates two conflicting interests, but rather embodies immediacy as such. Being a true participant of the legally presented social, or socially explicable legal conflict, she or he is at the very centre of the dispute. Legal Romanticism would define Aristotle’s mesidíos as a judge who gets effectively involved, who may suffer emotionally from the conflict at hand, and who might, if necessary, take sides or disclose his reasoning to both parties until eventually a volonté générale, i.e. Rousseau’s notion of a general agreement, is reached. This kind of judge, Aristotle continues, does not focus on equality by reconciling interest with interest. She or he in fact, generates equality not only for the particular dispute, but for society as a whole. In other words, by approaching a particular legal conflict, the mesidíos essentially solves a common problem.
These two implications – the genesis of justice and proceedings before a court as a symptom of social inequality – may sound like transcending the individual case at hand, and seem as if they were vulnerable to critique from a Legal Romanticist view, too. Certainly, if one emphasises respectively a genealogical run-up (genesis) or the orientation towards social classes or movements (solving a common problem), one has to admit that this perspective has definitely transcended the hic et nunc facts of the case, i.e. reality here and now, into something different: It is referring to a certain rationale behind phenomena. Yet, in contrast to this interpretation, Legal Romanticists would emphasise the instant creation of justice as the essence of the genesis as well as the implementation of social surroundings into the individual case as opposed to the orientation towards another reality. The first case illustrates a focus on the moment of creating or restoring justice, the second case stands for the consideration of all things, not as a movement away from particular procedural and factual circumstances, but towards the case at hand. This immediacy – or rather this non-mediacy – also applies to the mesidíos: An intermediate justice favours and demands the judge to be, as Aristotle framed it, “a sort of animate justice,” which negates the role of the judge as opposed to the judging human being. Thus three conclusions can be drawn: Legal Romanticism emphasises the non-mediacy of temporality, reasoning and judgement.
Certainly, it is not without ambiguity to promote a romantic view on law by referring to Aristotle. After all, he is known as the founder of doctrinal studies, with its categorising, i.e. dividing, of natural, social or political phaenomena. Nevertheless, Aristotle’s emphasis on the non-mediated involvement and participation of the person who judges, implies the idea that every mesidíos would decide the same case differently. And this is an idea which stands essentially for Legal Romanticism and its focus on the uniqueness of the case. The strongly required empathy of the judge through actual participation in the dispute would lead to an authorisation – more concretely to a self-authorisation – which is not established, nor obliged or bound to some external authority, be it the evocation of a metaphysical entity or a democratically empowered eartly parliament. If one considers the dictum of the late Sir Tom Bingham, recently published in “The Lives of the Law” (2011), that the judge’s duty is “to do right by all manner of people … according to the laws and usages of realms,” one acknowledges, as a Legal Romanticist, the inherent and almost intuitive attempt to generalise the function of the judge. Furthermore, the effort to generate a re-iterative judicial paradigm according to which other, similar cases ought to be considered is evident. And “similiarity” is a notion which must be rejected from the perspective of Legal Romanticism, as it structurally excludes and renders impossible individuality. Yet, this is not saying that Bingham does not balance the facts of the case at hand, it is only to show that for the tradition of Legal Rationalism, the case is part of something greater as concerns temporality and reasoning. Legal Romanticism denies this legal continuity, and maintains that the judge has no duty to anyone except himself as the maker, guide and participant of the legal conflict. In solving a common problem in one moment, she or he is not subject to heteronomous guidelines, bears no obligation to neutrality, impartiality or even Legal Romanticism: What is more paradoxical, this judge is not forced to reach a decision, either.
Stefan Mandelbaum
King’s College London 2012