Correlations, Statistics and Judicial Politics Studies – A MultiRights Morning Coffee Impromptu

By Marjan Ajevski, Postdoctoral Fellow, MultiRights  

One of the great things about working on the MultiRights project is the 10 a.m. morning coffee discussion, which can range from the mundane of the Norwegian system of inspection of public transport “cheats” (while resisting the urge to go into a discussion of Foucault’s Governmentality concept) to the more on-topic discussion, like this morning’s statistical analysis of judicial politics studies and patterns of voting. The discussion started with our sharing of experiences with citation reference managers and how best to use them, at which point we all agreed that the best one would be the one who, upon imputing the bibliography of the paper would proceed to writing it (Google please get the hint) which then migrated to voting patterns of judges and their correlation to the right-left political divide where the judge’s political leanings are discerned from the fact of which political party was in power at the time of the judge’s appointment.

I do not plan to spend much on the problems of statistical analysis of voting and the correlations and conclusions drawn from those correlations since those critics have already been done and I urge you to read them. No my simple task here is to try to give an alternative explanation on how such a correlation can come about where both the political scientists can be right in their correlations and where the judge would be right in claiming that what s/he has done was to follow the law and only the law and has not followed the appointing party’s politics. The archetypical example that we talked about at the morning coffee was a case of a Swedish Supreme Court judge, appointed during the time when the right leaning party was in power (keep in mind that this is Sweden we are talking about), who was faced with statistical information that there was a robust correlation that s/he voted for the interests of property owners in cases of property disputes, the assumption being that right leaning political parties are interested in robust property protection.
It is actually pretty easy to see how both propositions could be true, since for our judge what the law requires is the robust protection of private property from government intrusion and it is a reading of the law, and especially of rights, that finds its support in the eighteen century enlightenment since for our judge, Sweden is a liberal rule of law state, where one of the purposes of the rule of law is to ensure a liberal political system that would secure individual autonomy in which the protection of private property is key in ensuring liberty, a view shared from Lock to Hayek. In short, the protection of private property is a thick concept that is so deeply embedded in law as to be one of the premises of a constitutional democratic and liberal state. From the perspective of the judge, she is not doing politics but espousing closeness to the founding principles of liberal rule of law, regardless of whether it fits in one political party’s agenda or not, for our judge is a product of a field and a profession – the legal profession – where the issues of the protection of private property as well as other conflicting concepts are part of the topics of discussion and its daily staple. In a diverse profession that deals with such contested principles choosing one substantive and contested concept over others is not doing politics but doing law, since it would be hard to imagine a decision that is well justified within the language of the law and the different doctrines that the law deals with to be anything else than legal.
As another example, let us suppose (an unlikely and unlucky prospect) that I were elected to be a judge. In such a position I would, most likely, rule in favor of free speech over privacy in cases where a contested political or social issue is at stake since it is my belief that free speech has no meaning outside a democratic and liberal state where it serves the purpose of arriving at democratic decisions, and, on the other hand, if free speech were to be claimed by people who wanted to use that speech to destroy the liberal and democratic system then I would invoke the doctrine of militant democracy and reject their claim the same way that I would reject a claim of criminalizing abortion before fetal viability since the right to privacy is un imaginable without the right of choice over one’s bodily integrity a right that cannot be trumped by a collection of cells that the law itself does not consider a person. I would be able to rebut any conflicting arguments launched by another party by citing cases and concepts that confirm the principle of individual autonomy, a principle strongly embedded in the democratic and liberal law and create a line of precedents and justification that stem from the founding document or principle that is beyond scrutiny, at least for the moment. And in deciding these issues I would not be doing politics since all of my substantive decisions have support in various substantive understandings of civil rights, of what rights are for and of how they have been decided in previous judicial decision and in doing so I will be constrained by the four corners of what is possible in the legal profession for if I were to step outside of the four corners of the law I would not be doing law but something else.

The issue, it seems to me, boils down to the notion of whether we think that there is something that can be called “the Law” outside of individual, historically embedded, substantive concepts; a free standing law that judges are suppose to discover through their judgments; it is to suppose that the law is an object outside of a belief structure, something that has properties where its shape, its texture, its pressure and its pull can easily be known through scientific techniques, expressed through numbers and statistics for only such a law can have predictable never-changing outcomes, and where the declinations of those outcomes by judges can easily be measured and correlated. The easy answer to this is that it is not; it is a social construct which gets shaped and re-shaped almost with every passing decision incapable of being understood outside of a specific social and political context from where it draws it substance. It is just that the mechanism through which it manages to shape and re-shape itself is a rhetorical construction that what a particular decision stems from is the unchanging object, “the brooding omnipotence in the sky” in Holmes’ words and it is a rhetorical mechanism that has worked for centuries if not millennia. 


By Marjan Ajevski
Published July 3, 2012 2:01 PM - Last modified Aug. 18, 2015 1:30 PM
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