Another little thought experiment, on Judges this time. Now, clearly Judges at first instance have to very carefully assess the evidence, and the nuances and tone and demeanour of witnesses and attribute weight and balance to a variety of factors. The higher up the Court hierarchy you go, the less important that becomes, to the point where by the time of the Supreme Court, what a witness said or did not say in the box is almost neither here nor there.
In fact, what is very often happening in the Supreme Court is drawing together from a variety of sources – the legislation, the guidance and existing principles derived from authority, applying it to the legal dilemma in the case and achieving a decision that ends up being consistent with all of those decisions and perhaps extending the existing principles in a slightly new (yet consistent) direction.
Now, it occurs to me that as we reach the point of artificial intelligence, it would be theoretically possible to have all the legislation, all of the guidance, all of the previous authorities, held by a computerised mind, who could then just trace a path through them to reach the decision. If all that one is doing is looking at the precedent decisions and seeing where they would logically take you in deciding the legal dilemma, a sufficiently wonderful computer can solve that logical problem.
Instead of seven law lords, what one would have is a dazzlingly brilliant super computer S.U.P.R.E.M.E and the legal dilemma would be inputted and a judgment would come out.
If you’re like me, then you are probably shifting a little nervously in your seat at this point, and feeling that this is just uncomfortable. There’s more to Supreme Court decisions than just deriving the answer from the principles.
But that in itself takes us into interesting areas.
There seems to me to be some sort of qualitative difference between these two questions :-
(a) What is 53,209 divided by 7.33
(b) Is a school’s admission policy to give preference to Orthodox Jewish children, looking for evidence that the mother of the child is Jewish by birth or by Orthodox conversion, discriminatory under the Race Relations Act 1976
It is not simply a matter of complexity – of course the latter question is more complex, since one can solve the first question in a matter of seconds with a calculator, and the second at the very least is going to involve reading the Race Relations Act and the school’s policy, and any decisions that help clarify how either ought to be interpreted.
But there’s still more to it than just complexity, otherwise S.U.P.R.E.M.E could answer both, given the right information (or access to Google to find it for itself)
Isn’t one of the differences between the two questions that the answer to (a) exists already – it is out there to be found, and it is utterly replicable. Anyone who does the calculations will arrive at the same answer, regardless of who they are. (The same would be true if you swapped (a) for “What is the capital of Guina Bissau?” – it is a factual question, and the answer is out there to be found)
The answer to (b) – maybe it doesn’t exist (well, it does now, because the Supreme Court decided it in R (on the application of E) v JFS : Governing Body 2009 UKSC 15) and it only exists ONCE the question is asked and answered. The answer is CREATED, not found.
If question (a) is more like maths, or physics or geography – there’s a factual answer that is true for whoever answers it, then maybe (b) is more like history or english literature – there are certain things within it “In which Shakespeare play does Ophelia appear?” which are definitive, factual answers (like cases which squarely correspond with precedent) and there are others which the person answering the question creates “What is the nature of the character Hamlet?”
Once we start thinking in those terms though, we inevitably bump into the peculiar wrinkle that the highest legal authorities in the land, which bind future courts and cases and will in turn influence future legal authorities at the highest level are not OBJECTIVE TRUTHS found by the Court, but SUBJECTIVE decisions created by the Court. And in turn that the Judges who sit on these cases bring something of themselves to that process; that’s why the concept of S.U.P.R.E.M.E deciding it makes us feel a bit edgy.
That must intrinsically be right, because all of the Judges in the Supreme Court hear the same arguments, have the same facts, have access to the same precedent authorities. Yet there are dissenting judgments. So what causes that must be that there’s an element, even in the rarefied air of the Supreme Court, of subjectivity to deciding how the legal dilemma should be resolved.
[You may recall my previous blog about the impact of extraneous circumstances, such as proximity to lunchtime on judicial decisions
This piece derives from another interesting piece of research, which takes as an example the UK Supreme Court’s decision in the Jewish Free School’s admission policy.
My attention was recently drawn to this study, which is available in the Journal of Law and Society (I’m afraid that it is behind a paywall, and as such I can’t let you peep at it, and I have to be limited in how much I can quote out of it)
The study was written by Rachel J Cahill-O’Callaghan of CardiffUniversityLawSchool (which frankly is becoming a hot-bed of brainy talent, and one day I must try to visit and have my mind blown. Perhaps during the Six Nations…)
It opens with a lovely quotation from Lord Reid, in which he manages in four lines to say everything I’ve been fumbling in the dark for, and does so beautifully to boot.
“Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame… But we do not believe in fairy tales anymore”
There has been a long debate about the make-up of the Supreme Court and whether it reflects the diversity of our society (hint, no, it doesn’t) but this research goes further than that, and analyses how a person’s position on Values is brought to bear on judgments and decisions.
“In reaching a decision, at least one not governed by precedent, a judge will support one or more values above another…. Although the law provides the basis for framing and constraining judicial discretion, in difficult cases at least, it is the personal values of an individual judge that influences how that judicial discretion is exercised and that, in turn, can influence the way in which the law develops”
The way that the research tests this is interesting, and involves firstly identifying a series of values and defining those so that one knows exactly what to look for in relation to each value, then looking at the judgment in the authority, and analysing each line of it, looking at the emphasis that the individual judge places on particular values, which may compete (for example “flexibility in the law” v “Transparency in the law, Corporate responsibility v individual responsibility, freedom v responsibility).
On a case such as this, where the Supreme Court was divided in its opinion, that analysis can then be used to see whether the judges who reached a particular conclusion (there was a breach of Race Relations Act) appeared to place similar emphasis on similar values, and do the same exercise with those who reached the opposite conclusion.
On looking at that, there are really stark differences between the values emphasised by the majority judgments and the minority judgments.
The author of the report acknowledges that what was not possible was to go back to the individual Supreme Court judges after the judgment, with that analysis, and ask them whether the analysis of the values that each judge “appeared” to prioritise accords with their own view of where their own values sit, but the research uses some clever techniques to try to fill in this gap.
There’s an interesting conclusion that if personal values play a role in judicial decision-making and the framing of the law, then in order for the Supreme Court to represent society one doesn’t merely have to look at the very visible aspects of diversity (gender, ethnicity, socio-economic background) but also diversity of personal values.