Common Law Judging: Subjectivity, Impartiality, and the Making of Law

Are judges supposed to be objective? Citizens, scholars, and legal professionals commonly assume that subjectivity and objectivity are opposites, with the corollary that subjectivity is a vice and objectivity is a virtue. These assumptions underlie passionate debates over adherence to original intent and judicial activism. In Common Law Judging, Douglas Edlin challenges these widely held assumptions by reorienting the entire discussion. Rather than analyze judging in terms of objectivity and truth, he argues that we should instead approach the role of a judge’s individual perspective in terms of intersubjectivity and validity. Drawing upon Kantian aesthetic theory as well as case law, legal theory, and constitutional theory, Edlin develops a new conceptual framework for the respective roles of the individual judge and of the judiciary as an institution, as well as the relationship between them, as integral parts of the broader legal and political community. Specifically, Edlin situates a judge’s subjective responses within a form of legal reasoning and reflective judgment that must be communicated to different audiences. Edlin concludes that the individual values and perspectives of judges are indispensable both to their judgments in specific cases and to the independence of the courts. According to the common law tradition, judicial subjectivity is a virtue, not a vice.

About the Author :
Douglas E. Edlin is Associate Professor of Political Science at Dickinson College.

Review :
“This book challenges the dichotomy between judicial objectivity as virtue and subjectivity as vice; for Edlin, the intersubjectivity of judges, litigators, and legal practitioners increases the legitimacy of courts and the legal process. The theme development, writing, and subtlety of analysis of an extraordinary range of cases and scholarly works are superb. This book is ‘must’ reading for scholars of the common law, jurisprudence, and legal history, as well as of the Supreme Court, lesser courts, and law and social change.” — Ronald Kahn, Oberlin College “Common Law Judging provides a sophisticated and thoughtful account of how judging differs from legislating. Edlin clarifies that our political debates over judicial activism wrongly portray judging as either mechanical or political. Instead, by carefully demonstrating the way in which judging is intersubjective and incremental, constrained by common law traditions and practices, Edlin offers strong reasons to resist the political temptation to undermine judicial independence. Edlin’s rich philosophical argument draws on Kant’s Third Critique to explicate the sense in which judges’ decisions can be both affective and impartial.” — Linda Meyer, Quinnipiac University “Edlin offers a much-needed examination of some of the critical assumptions about objectivity that distort conventional assessments of proper judging. One needn’t be persuaded by all of his arguments to profit from the discussion. His analysis of judicial independence is a highlight.” —Tara A. Smith, University of Texas at Austin "Edlin deserves high praise for the clarity of his argument, and for the originality of his pursuit of the analogy between (Kantian) aesthetic judgement and judgment in the common law tradition. . . . [H]is book should – will, hopefully – result in further exploration of the similarities and differences between judging art and judging law." —Maksymilian Del Mar, Modern Law Review “Common Law Judging is a critique of the ways in which 'objectivity' has been used and misused in claims about legal judgment. . . . Edlin catalogs and summarizes for scholars hundreds of years of academic pondering about the key concepts he examines. . . . [W]e are highly sympathetic to Edlin’s account of legal reasoning as an intersubjective process that cannot be understood by invoking either pure subjectivism or strong objectivity.” —Thomas Burke and Lief Carter, Tulsa Law Review “Common Law Judging . . . is dense, subtle, and rich in pregnant distinctions and resonant formulations. The book carefully engages with the relevant philosophical and jurisprudential literature concerning objectivity and subjectivity, both generally and within law.” — Ken I. Kersch, Perspectives on Politics