The concept of objectivity in the UK Supreme Court through a comparative looking glass

The concept of objectivity in the UK Supreme Court through a comparative looking glass

During a public lecture on astronomy, the speaker is interrupted by an old lady sitting at the back of the room: 'What you told us is nonsense! The world is flat and it is supported by a giant turtle. The lecturer quickly responded: 'What is the turtle standing on?'. To which the lady rebutted: 'You are a very clever young man, but it’s turtle all the way down!' The lecturer, who according to Hawking might be Bertrand Russell, had allowed the opportunity for the assumptions of the given argument to be questioned (that the world is flat and that it is held up by a giant turtle). Yet, he chose, showing perhaps a glimpse of arrogance, to question the internal logic of the old lady’s argument. The decision was indeed unwise and his attempt to discredit the ‘turtle argument’ was quickly repelled.

The anecdote is a powerful reminder to all public speakers of the dangers of belittling an audience, but that is a trivial point. The message that Hawking wants to deliver in the opening lines of his book is twofold. Firstly, 'I will not make the same mistake'. A Brief History of Time will be focused squarely on a representation of reality that can be, within the margins of error of any scientific analysis, objectively verified. Secondly and perhaps as a corollary of the first point, the book will not be about the interpretation of the semantic structure of a theory.

The anecdote, I think, is also quite useful in understanding the difficulty of developing an objective legal reasoning in common law systems. In common law, judges often have to marry factual analysis with an interpretative activity of legal norms, which might be extracted from a common understanding of a narrative. For instance, murder is defined in England and Wales by the judicial interpretation of a section of a seventeenth-century textbook (Edward Coke’s Institutes of the Laws of England). The facts of the murder might include a historical narrative of events such as Mrs Smith was killed by a bullet which might be objectively tested. It is up to the parties to show that a factual narrative might be engaged by the facts of the case. In the case of our example, the death of Mrs Smith will require an interpretation of Coke’s book. The process is elegantly described by MacCormick:
'In these situations, the private complainer or public rule ¬enforcer must bring forward some assertions about the state of facts in the world, and attempt to show how that state of facts would call for intervention on the ground of some rule that applies to the asserted facts. Accordingly, the logic of rule-application is the central logic of the law within the modern paradigm of legal rationality under the 'rule of law'.'

The debate over the rule of law will not be part of our discussion. My argument here is, instead, that a judge, by way of comparison to a scientist such as Hawking, cannot avoid evaluating objectively ‘hard’ evidence that describes reality and, at the same time, s/he has to assess the plausibility of the ‘soft’ legal arguments that describe the semantic interpretation of the text.

Even if the normative aspect of the idea of objectivity is normally excluded from the court’s daily activity, it seems that judges are asked to do what would appear to be two dissimilar activities: the evaluation of the scientific explanation of reality and the assessment of the parties’ legal argument. Both activities demand, respectively, an evaluation of arguments based on pre-set criteria.

Let me develop this point. On a general level, the criteria of evaluation of factual and legal narratives might be different, since they are retrieved from different branches of science. For instance, the laws of physics might help with the ballistic trajectory of a bullet and philological assumptions might explain the significance of the term ‘murder’ in Coke’s book. However, in both instances, the judge makes an assessment based on criteria set by a community of experts. In describing the similarities between hard and soft sciences, Rorty, I think, delivers this point in clear narrative: 'They [hard and soft representation of reality] offer an account of enquiry which recognizes socio-logical, but not epistemological, differences between such disciplinary matrices as theoretical physics and literary criticism'. In short, having a shared idea of what is an objective analysis is an axiomatic aspect of any scientific endeavour. For instance, a basic mathematic formula (e.g. 1 + 1 = 2) requires abstracting, synthesis as well as an agreement in principle on what numbers mean. Developing his argument, Rorty suggests that objectivity cannot be constructed in universal terms (neither in pure science, nor in the humanities) and the sooner we accept such a limitation, the more fruitful our understanding of the idea of objectivity will be. Coleman and Leiter suggest a similar conclusion, albeit starting from different assumptions, in their concept of modest objectivity in law.

The point I would like to make here is that judges can, and following Rorty, must adopt different criteria of objectivity in relation to the subject of their analysis. In other words, an examination of the use of the concept of objectivity in the UK legal discourse should retrieve a cluster of criteria for both a scientific and interpretative perception of objectivity. An analysis of 98 cases did indeed confirm Rorty's analysis, and both the factual and interpretative ideas of objectivity. However, a second group of significances for the term objectivity (which is linked to a semantic interpretation of text) is, by way of comparison with the interpretation that associated it with factual narrative, far less common.

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