
Judicial determinations are the outcomes of events in which the adjudicators are constrained by defined rules, independent from extraneous influences, and bound by their social experiences or sensibilities. In Duncan Kennedy’s Freedom and Constraint in Adjudication: A Critical Phenomenology , the interpretation of the law is presented as a constant interchange between law and life. Consequently, most judicial decisions are obvious outcomes reflecting the legal arguments, presented facts, and the judge’s ideological commitments. However, Kennedy argues that adjudicators develop the desired outcome at the initial presentation of a dispute. As a result, the subsequent interpretation and analysis of the law attempt to support their sense of justice and substantiate their decisions to make the judgment acceptable. While this argument mirrors the inherent tension and interplay between life and the law, it underpins the unavoidability of the principle of political neutrality in adjudication processes. Although judges usually reach their decisions by observing the legal rules of judging and exercising their freedoms in making judicial choices, their experiences and social context often influence the outcome of cases.
Duncan Kennedy’s Rejection of Political Neutrality in Adjudication
Adjudication is the process through which judicial officers exercise their authority to determine disputes. It encompasses judges’ interpretation of the law through the observance of the established legal constraints and the exercise of judicial choices in making determinations. Kennedy (526) contends that judicial processes reflect a constant interplay between freedom and constraint. Manko (2) corroborates this view and asserts that traditionally, adjudicators determine matters brought before them by interpreting and contextualizing the laws against the presented facts and evidence. However, such an interpretation involves engaging with the questions of value, which indicates that adjudicators cannot avoid integrating political considerations in their decision-making. This implies that the interpretation of the law is not entirely a constrained or wholly open undertaking. As a result, judges feel obligated to interpret the law in a clearly defined manner and in accordance with their sense of justice. This subjectivity reflects the phenomenological aspects of the interpreter of the law and comprises the context and ideological commitment of the judges.
Additionally, the literal interpretation of the law limits the ability of the judicial officers to sufficiently explore and consider the materials presented. In most cases, the legal resources point to clearly defined outcomes after evaluating the facts and arguments. This suggestion implies that judges are, by law preprogrammed to deliver obvious conclusions through the objective interpretation of the applicable legal provisions (Klaasen 1). However, Kennedy (527) argues that the existing laws often do not provide definitive answers to a dispute, yet judges are required to make determinations. This would mean that adjudicators are technically barred from making some judicial determinations through the correct legal reasoning. According to van Domselaar (72), such fixation on the rules and principles reduces judicial proceedings to empty rituals performed towards determinate outcomes. Harris and Sen (242) posit that such a viewpoint contradicts the longstanding empirical observation that law and its application are never certain, clear, and exact but is variable and vague. With such imprecision, indeterminateness, and lack of clear right answers, it would be imprudent and unreasonable to expect judges to be politically neutral.