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Objectivity in Legal Judgment Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1994 Objectivity in Legal Judgment Heidi Li Feldman Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1715 92 Mich. L. Rev. 1187 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Legal Profession Commons OBJECTIVITY IN LEGAL JUDGMENT Heidi Li Feldman* INTRODUCTION We are experiencing a crisis of confidence in the idea of objectivity. In scholarly circles, many are ready to discontinue talk of objectivity altogether, on the grounds that it has been nothing more than a mask for the oppressive practices of politically and economically privileged groups, promising neutrality where in fact there are only power rela- tions. Some feminist legal scholars, some critical race scholars, and some critical legal studies scholars, along with some contemporary philosophers, argue that objectivity is inevitably a problematic, dan- gerous idea or ideal. Critics of objectivity sometimes argue that it can never be genuinely had, only claimed under false pretenses and then used oppressively.' On the strongest reading of their ideas, critics of objectivity insist that we entirely eliminate the idea of objectivity from our conceptual vocabulary. Different commentators base their insistence on different grounds. Feminist critics reject objectivity because, in their view, it is inextricably connected to male power and female subordination; purg- ing objectivity from our conceptual vocabulary is prerequisite to the elimination of these evils.2 Some philosophers claim that objectivity is, at best, chimerical, and that, at worst, it limits our capacity to im- agine and create new and better moral and political lives for ourselves. According to these critics, abandoning objectivity would save us from * Assistant Professor of Law, University of Michigan. B.A. 1986, Brown; J.D. 1990, Ph.D. (Philosophy) 1993, Michigan.-Ed. I would like to express my warmest, deepest thanks to the many colleagues in the University of Michigan Law School and Department of Philosophy who read drafts of this work for their generosity in commenting upon and discussing it throughout the stages of its development. 1. Commentators critical of objectivity include the feminist legal scholar Catharine Mac- Kinnon, the critical race scholar Richard Delgado, and the philosopher Richard Rorty. See CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 120-24 (1989); RICHARD RORTY, Solidarity or Objectivity, in OBJECTIVITY, RELATIVISM, AND TRUTH 21 (1991); Richard Delgado, The Inward Turn in OutsiderJurisprudence, 34 WM. & MARY L. REV. 741, 762-68 (1993). For a composite overview of feminist objections to objectivity, see SANDRA HARDING, WHOSE SCIENCE? WHOSE KNOWLEDGE?: THINKING FROM WOMEN'S LIVES 157- 59 (1991). Objectivity is controversial in fields other than law and philosophy. For a discussion of critics of objectivity as a journalistic ideal and a rebuttal of these criticisms, see Judith Lichten- berg, In Defense of Objectivity, in MASS MEDIA AND SOCIETY 216 (James Curran & Michael Gurevitch eds., 1991). 2. See, e.g., MACKINNON, supra note 1, at 120-25. 1187 1188 Michigan Law Review [Vol. 92:1187 both epistemological and ethical error.3 Other critics of objectivity condemn it less strenuously. They re- gard the idea of objectivity as dispensable, if not dangerous. Accord- ing to some such critics, talk of objectivity tends to inhibit our thinking, curtailing arguments that ought to continue.4 According to others, talk of objectivity makes us feel more constrained than we re- ally are.5 In either case, the idea of objectivity offers little in the way of positive power, according to these critics, and so relinquishing it imposes little cost. Skepticism and cynicism about objectivity, especially objectivity in law, is not restricted to scholars. We find it among the general public, surfacing in reaction to controversial trial judgments, such as those reached in the Rodney King and Reginald Denny beatings trials, and in response to Supreme Court judgments on sensitive matters, such as abortion and voting rights. Contentious legal judgments invite doubt about the law's capacity for objectivity. I take seriously concerns about the potential dangers of the idea or the ideal of objectivity and worries about whether objectivity is illu- sory. But objectivity is a very powerful idea, one that we could, per- haps, put to good use in criticizing what merits criticism and praising what merits praise. Before we abandon the idea or ideal of objectivity altogether, we should see whether we can elucidate it in a way that answers to that which seems worthwhile in the concept without in- cluding that which seems pernicious. This elucidation will enable us to gain a clear picture of the costs and benefits of retaining the idea and the ideal. Then, but only then, we will be ready to consider when, if ever, objectivity is*a concept worth keeping in currency. Popular understanding of science has given us one very simple conception of objectivity. According to this rather vague, prereflective conception, objectivity is a matter of correspondence to the world as it "really" is, independent of our practices, goals, values, and beliefs. Objective judgments track this human-independent world. For those seeking objectivity in legal judgment, a problem emerges immediately upon consideration of this simple conception. The phenomena identi- fied by legal concepts such as negligence, fraud, and rape are not like the phenomena identified by natural scientific concepts like proton or 3. See, e.g., RORTY, supra note 1, at 27-28, 33-34. 4. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 80-83 (1986) [hereinafter DWORKIN, EM- PIRE]; RONALD DWORKIN, A MATTER OF PRINCIPLE 171-74 (1985) [hereinafter DWORKIN, PRINCIPLE]. 5. See, e.g., Duncan Kennedy, Freedom and Constraintin Adjudication: A CriticalPhenome. nology, 36 J. LEGAL EDUC. 518, 520-21 (1986). March 1994] Objectivity 1189 gravity. Negligence, fraud, and rape are not human-independent phe- nomena; they are constituted by our practices, goals, values, and be- liefs. Legal judgments that apply concepts like negligence, fraud, and rape are not purely descriptive. 6 These legal judgments do not aspire to correspond to a human-independent world, free from our practices, goals, values, and beliefs. If we have only the simple correspondence conception of objectivity available to us, it would seem that we have to surrender the possibility of objectivity in legal judgment. Many legal judgments do not fit into this conception of objectivity at all. 7 Nor would most legal judgments fit into a conception of objectivity suitable for wholly evaluative or purely normative judgments, judg- ments that apply concepts with little or no descriptive content. An example of a more purely evaluative concept is good; an example of a more purely normative concept is ought. These concepts apply appro- priately under an extremely wide variety of factual circumstance, serv- ing as all-purpose evaluative or prescriptive devices. Even though fraud and negligence have a negative evaluative flavor or component, it would be extremely odd to call torture fraud or negligence, whereas it would not be odd to call it bad. This is true because it will practi- cally always be inappropriate, due to the descriptive dimensions of fraud and negligence, to apply these concepts to torture, even though it is practically always appropriate to evaluate torture negatively. Moreover, fraud and negligence do not negatively evaluate torture in an apt way. Due to the intricate interweaving of the descriptive and the evaluative dimensions of these concepts, they evaluate in distinc- tive and particular ways.8 Bad, on the other hand, aptly negatively evaluates circumstances ranging from torture to spitting on a public bus. That is because its evaluative dimension is more general and less nuanced than the evaluative dimensions of negligence or fraud. We do not have a straightforward prereflective conception of ob- jectivity for more purely evaluative and more purely normative judg- ments, as we do in the case of more purely descriptive judgments. But, because more purely evaluative and more purely normative judgments are less closely world-guided than the kinds of legal judgments I have been noting, it is prima facie unlikely that a conception of objectivity suitable for more purely evaluative or normative judgments would be 6. Throughout this essay, I speak of "applying" concepts. Note that both the use and the nonuse of a concept count as "applications" - that is, a decision not to use a concept is as much an instance of applying it as is a decision to use it. 7. Whether even scientific judgments fit into this conception is a separate question, which I pursue briefly in Part II of this essay. See infra text accompanying notes 49-53. S. I clarify and pursue the nature of the connection between the descriptive and evaluative in concepts like fraud and negligence in Part I. See infra text accompanying notes 14-41. 1190 Michigan Law Review [Vol. 92:1187 suitable for more closely world-guided judgments, including the legal judgments mentioned so far.9 The situation confronting the defender of the idea or ideal of objec- tivity in legal judgment worsens. If neither the correspondence con- ception of objectivity
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