A psycho-ethical theory of the judicial role

Abstract

The main purpose of this dissertation is to define the judicial role in such a way that a coherent and comprehensive theory of decision making by courts is ultimately evolved. Despite its preoccupation with the administration of justice by competent judges endowed with an instinctive sense of justice, it contains some occasional, comparative expositions of the psychological tendencies of persons in judicial as well as executive and legislative power, all of whom must be in possession of a strong alertness to human right and wrong, licitness and illicitness, legality and illegality. The entire thesis centres around the basic theme of bad faith, itself designated by the more technical term, ‘mala fide’. Mala fide will, indeed, be the term conveying the recurrence of civil and commercial liability. It will be seen functioning together with other concepts, such as oppression (to feature as a more potent form of mala fide), hardship (which actually forms part of bad faith, itself meaning "intention to cause civil and commercial hardship"), power, situational motivation, utility-verification, the role-process, exploitation, etc. It is easily observed that these concepts tend to be psychological in character. In fact, what will be propounded is a psychological theory of the judicial process. It is appropriate to commence a preview of the respective chapters. Chapter I will start with a historical and comparative introduction, which portrays the position of the judge in common law and Roman law systems. The introduction will be followed by a study of the judicial role, as it appears under each of the existing trends of law, e.g., the positivist trend, the sociological trend, the trend of idealism and the psychological trend. Chapter II will start with a portrayal of the truly competent judge, naturally gifted to discern human fault. The image of the born judge will spontaneously lead to a comparative analysis of the judicial function. There will then emerge a most striking feature of the dissertation, wherein psychology, morality and law will be developed as fused concepts: thus, the basic model will lay down the unitary structure of human action, whereby the legislator himself must abide by precepts of morality, refraining from prohibiting or controlling acts that have no inherent wrongfulness potential. In the final chapter, this mode, itself arrived at upon a solely logical basis in chapter II, will be expanded into a basic subordination of the legislative function to the higher, moral truth that no law should be enacted that tends to produce unreasonable hardship in the situations falling thereunder. In this proposition, in fact, resides the most convenient definition of an unjust law. Also, in chapter II, an intriguing comparison will ensue between the three constitutional functions, namely, the judicial, executive and legislative functions. The final part of the same chapter will then lay down a general outline of the theory of mala fide. In chapter III will follow a lengthy, self-sufficient exposition of the theory of mala fide. Each stage of the theory will be described in detail. The consecutive stages are: (i) a dissection of the litigious facts into a plurality of roles; (ii) a discernment of a breach of any of those roles, (iii) another final discernment of how the said breach of role has actually caused the plaintiff's hardship. The party civilly liable is thus the person who lies in breach of his role and who is adjudged to be in bad faith, objectively construed, i.e., on basis of his presumed knowledge of the exigencies of his role and his consequently also presumed intention to cause plaintiff's hardship. Some mathematical formulae will be laid down in order to place generally applicable patterns of civil liability upon a truly scientific basis. Chapter IV will contain a development of the theory. It will deal with the concept of oppression and, therefore, with actions (in civil and commercial contexts) involving a powerful defendant, e.g., the government or persons vested with industrial or juridical power, such as employers and creditors respectively. Special techniques will be envisaged for human-rights cases and for administrative actions instituted against the government jure imperii. The power-element will be designated as the power substratum of litigious facts, and it will be described as generally applicable to all actions (not only to actions considered in chapter IV). The emerging two-levelled image of power is resolved towards the end of the final chapter after recurring several times in the course of the dissertation. The resolving factor will, indeed, be hardship suffered in a situation of powerlessness and subordination, naturally arising under law and contract. Chapter V is aimed at taking the law into account. In previous chapters, ‘mala fide’ featured as an autonomous device centred on the litigious facts. No, ‘mala fide’ is made to resolve disputes in concurrence with and subject to the applicable, legal values. The framework devised for these values is the value-perspective of the judicial process. The judge must make it his task to identify the conflicting, legal values and note them as constituting possible solutions to the case. The mala-fide solution already yielded will be assessed in conjunction with these solutions, and ultimately it is the best solution that has to be applied to the case. Indeed, the process that is described in the dissertation as being specifically structured to ensure that it is only this best solution that is applied to the case is the process of utility-verification. This process is dealt with in chapter VI. Chapter VII deals with the including legal suppression human rights or other legal symptoms of legal injustice. unjust-law dilemma. Legal oppression, of political freedom and inadequate protection, will emerge as the basic symptoms of legal injustice. It is evident that this dissertation evolves on basis of a continual interplay between certain psycho-moral concepts. It seems that every significant stage of the theory marks a rejection of G.E. Moore’s contention that ethical concepts are not capable of definition because any attempted definition would reveal a tautology wherein an ethical term has to be defined in terms of another ethical term. Moore ignores the truth that an ethical term, for the purpose of definability, stands at par with all oll1er linguistic terms attaining definition. Intuitive perception must accompany all forms of definition: it is only the object of such perception that varies. A tangible object, therefore, requires visual perception; an object with aesthetic value requires artistic perception, whereas terms which properly belong to the social sciences require a moral and intellectual perception. The mere fact that to define a term, reference is made to the circle of intuitive perception to which it relates is to be treated in the nature of a necessity and can hardly point to an impossibility of defining certain terms. If what is equitable is defined as what is just, the resulting definition may appear meaningless in the abstract, but when acted upon by the right type of human mind, it will become totally discernible in its meaning. Moreover, it is an untruth to say that moral concepts need necessarily another moral concept for their definition. Thus, if we define "bad" in terms of "potentiality for causing hardship" or "actual causation of hardship, " such definition would be found to involve a recourse of ethics to psychology. Moore's naturalistic fallacy (itself being the term used to designate his tautology argument) is, indeed, converted in this theory into another fallacy wherein the perceptive reaction of moralists (itself capable of parallel in all other strata of definition, as explained above) is qualitatively mistaken as conveying a truly existing and objective attribute of all moral concepts.