Essay on how judges decide cases

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“Every judgment I write is a lie.  I will repeat that statement: every judgment I write is a lie.  This was the opening sentence of a lecture that I gave to students at the University of Toronto some years back, and, as I said in the Introduction, it captured their attention. . . I explained to my bemused audience that as a new judge on the Constitutional Court I would always smile inwardly when first reading my judgments in print.  The judgments told their story in such an orderly, clear, sequential narrative form.  They would begin by stating the issue raised, and then set out the history of the litigation and elucidate the specific questions to be determined.  Next they would outline the relevant legal principles involved, apply them to the facts and arrive at the appropriate conclusion.  

. . .

What produced my amusement was the knowledge that my judgments had in fact emerged from an inchoate – even chaotic – mental firmament quite different from that suggested by their ultimate assured expression.  Mixed in with the formal logic there had invariably been an enormous amount of random intuitive searching and a vast element of unruly, free-floating sensibility. . . I wanted the students to understand that legal writing was not simply or even primarily about connecting pure, rational legal propositions together to produce a forward-moving train of thought that arrived at a logically pre-destined outcome.  Though internal rationality was necessary, it was only one part of the story.”

Discuss how the above quotation from South African Constitutional Court Justice Albie Sachs compares and contrasts with theories of adjudication you have studied.  

In this quotation from South African Constitutional Court Justice Albie Sachs, taken from the chapter ‘Tock Tick: The Working of a Judicial Mind’, in his book ‘The Strange Alchemy of Life and Law’; he is merely describing what he has lived through as a judge preparing a judgment. He endeavours to do this by explaining to us the journey of those judgments, starting with the most tentative initial ideas and ending with the ultimate confident exposition that appeared to exclude any possibility of error.  However, he also places great emphasis on the point that an enormous disjuncture existed between the surface character of his judgments as they appeared in the law reports or on the internet, and the actual intellectual programme in terms of which they had been devised, created, constructed and formalized. 

It may also be worthwhile to note at this point, that the South African Constitutional Court is largely a court of appeal and by its very nature deals only with borderline cases.  Sachs J. states that, ‘almost by definition the cases we heard resisted straight-forward solution, and judges could quite honestly go this way or that.…far from being automatic, the process of decision-making in an appellate court was usually arduous, complex and rich’.  Therefore, I will begin this essay by giving an overview as to how Sachs J. elucidates on the thought processes involved in the construction of his judgments.  Having done this, I will then discuss other theories of adjudication as proposed by key legal theorists and determine how they may either compare or contrast with the thought processes involved in the construction of Sachs’ J. judgments.

Sachs J. first of all acknowledges the separate processes of discovery (intuition) and of justification (logic).  He explains that discovery is a specific process with its own logic, its own pre-conditions and, by its nature, its own surprises.  He states that only rarely would there be moments of great judicial discovery when completely new principles would be established.  However, he emphasises that the South African Constitutional Court, being a new court with a new constitution, and, moreover, a court that was encouraged to look to international jurisprudence, the role of innovatory principles was particularly important.  This may be seen as what he explains as an enormous amount of random intuitive searching and a vast element of unruly, free-floating sensibility.  

The logic of justification, on the other hand, was based on the conjunction of verifiable evidence and logical reasoning to produce replicable results. Justification meant using certain accepted principles, rules and standards to arrive at a conclusion that was consistent with those rules, principles and standards.  Sachs J. explains it as connecting pure, rational legal propositions together to produce a forward moving train of thought that arrived at a logically pre-destined outcome.  It was based on obligation, on the rationale being underpinned by logical necessity.  The outcome had to be what the outcome was.  Whereas justification was based on the affirmation of certainty, discovery was based on rendering uncertain what had been regarded as certain.

Having explained these two separate processes, Sachs J. affirms that he did not have the free choice of deciding between adopting one’s intuitive sense and following the process of formal reasoning.  A discovery that could not be justified could not stand.  Accordingly, there had to be interplay between these two orders of thought and, according to Sachs J., when wrestling with a problem, he went to-and-fro, backwards and forwards, from logic to discovery, from discovery to logic.  This is further explained by him using the comparison of the mechanisms of a clock to that of the thinking of a judicial mind.  Unlike a clock that has progressed from six o’clock to twelve o’clock in a graduated way according to the logic impressed into its mechanism, he jumped backwards and forwards according to the vagaries of his thinking.  The tocks and the ticks would be in great disharmony, until eventually the tension between the two was settled, and what might have been tock-tick, tick-tick-tick, at last became tick-tock, tick-tock, tick-tock. 

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Sachs J. then goes on to explain that he felt that there was something more to the process than just harmonising reason and discovery, another element involved in his judicial reasoning, which he calls the logic of persuasion to which the logic of justification was central.  He states that if there was a gap in the process of reasoning, the judgment would be manifestly flawed and would persuade nobody.  He refers to it as being the rhetorical thrust of a judgment by engaging in argumentation that convinces and connects up the specific issues of the case with the wider ...

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