Independent from the pressures of everyday life and free of political influences, the judge is to resolve difficult legal disputes wisely, rationally and in a deliberative manner. Judges are often perceived as rational actors who reason logically from facts, statutes and previous decisions to reach a decision in the case at hand. They must be able to make courageous, even unpopular decisions. Judges are prized for their impartiality and willingness to listen to all sides of an argument with an open mind; judicial independence and the knowledge that they cannot be removed from office protect judges who make controversial decisions that spark public outrage. This is the idealized version of a judge and it is at best something to aspire to. It is an image that certainly fosters expectations of those who call upon a judge to settle their disputes.
However, this idealization tends to obscure the human dimensions of the practical task of judging. Judges should aspire to objectivity but they cannot avoid being shaped by their background and life experiences. Studies show that the socio-intellectual background (e.g., an upper middle class background), the personal and emotional life (e.g., the legal realist caricature that justice is what the judge ate for breakfast) and the gender and societal views (e.g., a patriarchal model of society) of judges have a significant impact on their understanding and practice of law. Moreover, also technical expertise, the status of experts and the broader social and political context of disputes, colour and influence judicial rulings.
The ever increasing role that courts and court proceedings play in the daily lives of individuals, corporations and governments, requires a better understanding of the role of the judge and the impact of subjective elements in judicial decisionmaking. The thesis gains support that to completely factor out all subjective perceptions would make judging mechanical and inhuman. It would also be virtually impossible to do. This more subjective and human judge is not to be substituted by the objective judge. The challenge is to join the two roles in a creative tension.
So far, little attention is paid in Belgium to the influence of these subjective characteristics on judicial decisionmaking. The examinations for future judges are primarily knowledge-oriented. Yet, law cannot be limited to its objective formalist dimension of a mere technical-legal application of rules to facts. There is always a scope of interpretation in light of a changing personal and social context. Moreover, the application of legal rules also relies on technical knowledge and expertise provided by experts, raising the question to what extent judges can and should rely on the expertise of these specialists. How can these issues be included in a modern training of courtroom judges? What new tools can be developed to eliminate potential biases? Can the participation of lay judges, as it is known in commercial and employment courts in Belgium, resolve some of these challenges?
The UCSIA workshop will investigate how sound, objective and ethically informed judgments can be reached in the courtroom, balancing the influence of the judge (the working of the legal profession, the role of rhetoric and language, etc.), with the input of new scientific methods, the influence of other actors (the attitude of the parties, their lawyers, experts and their aura of irrefutability, …) and the socio-political context (political responsibility, social pressure, media influence, …).