Essay 3 - Claim Judges should disregard their personal...

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Claim:Judges should disregard their personal values when making a legal decision. Introduction In the following essay, I will subject the above claim to a critical interpretation, analysis, and evaluation from different perspectives in order to arrive at certain conclusions as to its validity. Upon doing this, I will critically reflect on the entire process and the factors that affected my thinking, with the aim of producing a more transparent and thus valuable essay. Interpretation and Analysis In keeping with the course’s notion that the object of critique must first be understood before criticism or evaluation of it can properly be made,1I will in this section examine closely, in semantic detail, and place in relevant necessary context, my chosen claim. To begin with, the presence of the word ‘should’indicates that this is a statement advocating something: in this case, a judicial method (that is, judges making ‘legal decisions’on cases before them in court) disconnected from the personal valuesof the judge. It thus operates upon the assumption that identifiable right and wrong approaches to the issue in question do exist. More broadly, it is premised on the belief that it is actually possible for judges to disregard their personal values when making decisions a point disputed by commentators, as I will explain later. Indeed, the fact that ‘should’is used, and not ‘must’, may indicate that there is an undesirable tendency for judges not to disregard their personal values when making decisions. In addition, the absence of a qualifier to ‘judges’must lead one to assume that what is being acknowledged is that the decisions of all judges, irrespective of the seniority of the court over which they preside, can potentially be influenced by their personal values. The generally accepted reality is, however, that legal rules are sufficient to resolve most cases, and where they are not, the case will in most instances reach a higher court.2When understood in context, then, the claim implies that these judges should only legislate interstitially,3or where the law has, according to H.L.A. Hart, open texture4. The use of ‘disregard’, and not ‘ignore’, is also interesting. This may imply that judges should not blithely dismiss the relevance of their values, but openly recognise their existence and form beforesetting them aside and making their decision. A possible reading of the claim, then, could be that judges ‘often are unreflective about their attitudes and views, as many people are.5Finally, we need to identify what is most likely meant by personal values. An influential definition of ‘values’is one adopted by ANU law professor John Braithwaite: ‘a single belief of a specific kind…a trans-situational guide to attitudes, actions and judgements.’6Therefore, personal values are probably those overarching, non-specific, beliefs personal to individuals that are in important ways socially moulded, if

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