(sent to conlawprof)
I'm not exactly sure I'm following. Usually these discussions about about a particular judge and the quality of his or her casuistry. If we are now talking different judges, I see two cans of worms here. One is in the realm of something post modern, the other is the bane of classicism. Let's take old school first. Back in the day, it was common to want to believe that a universal method existed for judging law. If efforts in brain science, cognition, philosophy, law, logic, metaphysics or what have you produce such a thing, then I suppose it would be proper to expect all judges to use the correct method. But because we live in a jurisprudential and epistemological world where formalism and universality has given way to concepts like structure and integrity, we live in a world where judges are only expected to have a good method or defensible reasons for what they do. So there are plenty of reasons why judges would have different approaches, much the
same way that in dietetics there are different approaches (zone, Atkins, food pyramid). We know from the failings of the past that "law" cannot be a hard science.
Now, let's go in the other direction. Would we ever reach the position where we might say that Judge A should use method X and Judge B should use method Y (as in, proscribing this)? The only argument here would be something like this. Let's say judge A's brain is good at math and abstract reasoning, while Judge B's brain is good a social intelligence. Let's say, as a result, A is a good philosopher but has poor common sense. And B is very good at seeing how people feel and is especially well read in literature. If there ever arises a case that the law could afford a resolution either way -- let's say, a strip search of a girl in high school -- then how A and B come to understand things in their brain might be important. A might say, how is this different from locker room dressing (using the faculty of comparison and contrast). B might process through the lens of social construction and see empathy. Both might reach the same conclusion -- the
search goes too far. But in each case, we might argue that A's brain can only get at the world through A's way, and so it is for B. And one might argue that A needs B around to talk about the case and visa versa. A needs reminded about things he cannot see as much as B does. And so, we might say of these two judges that A should use more formalistic techniques because they are what he or she is good at, and B should use other important cognitive tasks because they need to be there too. So if in the end we want really good cognition of problems, maybe we need each judge to have methods that are becoming of their traits.
Just an idea. I wonder if this query is not similar to asking whether business partners or competitors should use the same logics. My sense is that if there is one that is superior, we would have to use it, but if not, it is whatever makes for a more enriched perspective/context.
Dr. Sean Wilson, Esq.
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860