Information Law Possum (discontinued)

First, a track that I am not going to follow: The emotions of the judges. Unless they were robots, they must have been extremely agitated at least when taking evidence, especially since the perpetrator had videotaped the killing and the disembowelment of his victim. It is not difficult to imagine, however, that the appeals judges too felt strongly about the matter, even if they only studied the documents and transcripts of the trial.

Emotions on the part of the court are a fact, unavoidable but not necessarily undesirable, and the law has to cope with them. My principal–if only preliminary–thesis is that one of the better ways to cope with them is to embrace emotions generally:

First, this involves meta communication (or “meta thinking”) on the part of the judges, in the sense of an “emotional self-assessment” that increases the chances of getting latent emotions (in our example: disgust) to the surface of their consciousness. I am convinced that many judges do that on a daily basis.

My second point concerns “juristische Methodenlehre”, i.e. the “art” of legal interpretation. As mentioned briefly in my previous post, Swiss courts use a “canon” of methods to construe a statute or a code. (One might more accurately term the canon of methods a toolset.) Its elements date back to the 19th century (Savigny), and its most common elements are the following:

• the wording of a norm
• the position of the norm within the systematic of the law
• its legislative history
• its purpose, at the time of enactment and in the present

Some scholars would add that an interpretation which respects the constitution best should be preferred. Traditionally, the elements mentioned do not have a hierarchical order–the Federal Supreme Court speaks of pluralism of methods (”Methodenpluralismus”) in this regard.

The “canon of methods” has been widely discredited among scholars and–I’m 100% sure–among judges as well for decades, even if the Federal Supreme Courts and other courts formally uphold it. My unoriginal and rather mainstream take on it is that the “canon” is a ritual with limited, but not inexistent potential of rendering decisions more rational.

Now, after giving account of these underlying notions, we can return to my point on emotions in the “Juristischen Methodenlehre”: The “canonical” ritual of statutory interpretation ought to take into account emotions when considering each one of the elements mentioned. The way how this is to be done likely varies according to the element of interpretation and the emotion(s) involved. I am going to try and specify that in the next post, using the Rotenburg case as an example.

This entry was posted on Wednesday, March 21st, 2007 at 6:50 pm and is filed under juristische Methodenlehre, law and emotion.