JUDGES AND JUDICIAL

REASONING
WEEK 5
 JUDICIAL REASONING

 Twin points of focus for judicial reasoning and interpretation:

-- Individual factors
Interaction/Dialectic
-- Structural factors
 “DOING” INTERPRETATION

 Gadamer and Subject/Object Distinction

 Interpretation as an act of understanding

 Neither reconstruction of past nor imposition of external values

 Critique of “Method” and Practical Reasoning

 William Eskridge Jr. & Philip Frickey, “Statutory
Interpretation as Practical Reasoning”
 The way in which judges reason their decisions is a vital component of how the law functions.
 The process of interpreting statutory provisions and applying case law is far more complicated than a simple formula
for logical reasoning would suggest.
 It seems inevitable that factors outside of the logical and legal reasoning process must play a part in judicial decision-
making. The amount of uncertainty inherent even in formal logical reasoning processes gives room for the engagement
of non-legal factors to contribute to legal judgments: these factors may include morality, economics, politics and social
issues.
 Judgments often come across as highly reasoned arguments, reaching the only inevitable conclusion based on the law
through an objective and rigorous analysis of the evidence – statutes, common law, case law, etc.
 Practising Lawyers are eclectic in their interpretation of statute than a Professor of Law who is more abstract and not practical
enough.
 When practitioners give advice to clients about what a statute means, their approach is usually eclectic: They look at the text
of the relevant statutory provisions, any legislative history that is available, the context in which the legislation was enacted,
the overall legal landscape, and the lessons of common sense and good policy.
 But when law professors talk about statutory interpretation, they tend to posit a more abstract, "grand" theory that privileges
one or another of these approaches as "foundational."'
 The commentators' grand theories contrast with the more ad hoc, factbased reasoning of the practicing lawyer.
 How do judges interpret statutes? How should they?
 Commentators think they should use the grand theory or be inspired by grand theory.
 The authors think Judges in interpretation should be generally eclectic, not inspired by any grand theory. foundationalism is a
flawed strategy more modest approach, but interpretation should be grounded upon "practical reason,“’ is both more natural
and more useful.
 Article divided into 3 Parts:
 Part I argues that the three main unitary theories of statutory interpretation all fail to establish an overriding and "objective”
foundation for interpreting statutes because –
 1. each rests upon questionable premises about the nature of interpretation and the legislative process.
 2. none can systematically produce determinate results in the "hard cases," which undermines their claims to "objectivity."
 3. no theory persuades interpreter that its cluster of underlying values is so important as to exclude all others
 An overall difficulty of the theories is its emphasis on the universal over the particular, its failure to recognize that statutory
interpretation will work in different ways in different concrete cases.
 Part II, describe the structure of practical reasoning by which the Court interprets statutes in concrete cases. According to this
model, the Court considers a broad range of textual, historical, and evolutive evidence when it interprets statutes. seems to
describe what the Court actually does when it interprets a statute.
 Part III, these traditions and our model of practical reasoning offer methods and criteria for criticizing the Court’s approach.
 THE FAILURE OF FOUNDATIONALIST THEORIES OF STATUTORY
INTERPRETATION

 3 foundationalist therories – Intentionalism, Textualism and Purposivism

 We call these theories "foundationalist," because each seeks an objective ground ("foundation") that will reliably
guide the interpretation of all statutes in all situations. These theories seeks to reconcile statutory interpretation
with the assumptions of majoritarian political theory - each seeks an objective standard that will constrain the
discretion of judicial interpreters - each theory fails.
 all three theories suffer from flawed assumptions, indeterminacy, and non-exclusivity.
 Assumptions – each theory posits an anchoring value-legislative "intent" or "purpose," or statutory "plain
meaning"-that rests upon certain questionable assumptions - each anchoring idea loses its close link to
majoritarian legitimacy.
 Indeterminacy- there are no reliably assure determinate results.
 non-exclusivity - none can exclude the other – none adequately accommodate evolutive factors-current values
and policies, as well as the dynamics of the statutory policies as implemented over time - they cannot convincingly
 THE FAILURE OF FOUNDATIONALIST THEORIES OF
STATUTORY INTERPRETATION
 A. Intentionalism - explore three different versions of intentionalism –
 1. the actual intent of the legislators – if the legislators did not clearly write that understanding into the statutory text, how can
we figure out what they "intended"?
 it is possible to know the actual intent of the legislators – Lower house and upper house - legislators vote for bills out of
many unknowable motives, including logrolling, loyalty or deference to party and committee, desire not to alienate blocks of
voters, and pure matters of conscience - flawed assumptions about the legislative process.
 2. Conventional legislative intent - Given these definitional and vote-counting problems, intentionalists usually speak of
conventional, rather than actual, legislative intent. Statements made in committee reports and floor statements by sponsors or
floor managers of legislation presumably represent the legislature’s views on specific issues - however, may be inconsistent
with the actual operation of the legislative process. Committee members and bill sponsors are not necessarily representative
of the entire Congress,' and so it is not necessarily accurate to attribute their statements to the whole body - flawed
assumptions about the legislative process.
 3. Imaginative reconstruction Intent - Judge Posner - Where Congress has written a statute broadly or where its concerns do
not allow us to reconstruct its imagined intent, courts should simply seek the most reasonable interpretation.
 The Judge Posner versions of intentionalism is subject to three critical problems of assumptions, indeterminacy, and non-
exclusivity.
 - assumptions – Wrong assumptions to think that interpreters can recreate the historical understanding of a previous
legislature. Modem historiography assertion - The nature of the story will vary according to the way the storyteller selects and
interprets the facts. And in choosing and interpreting facts, even the most scrupulous historian will be influenced by her own
biases, meta-theories, and desired conclusions.
 The nature of the story will vary according to the way the storyteller selects and interprets the facts. And in choosing and
interpreting facts, even the most scrupulous historian will be influenced by her own biases, meta-theories, and desired
conclusions.
 - indeterminate - it often asks counterfactual questions of a long-departed legislature. Every statute carries with it certain
assumptions about the nature of law and society. Often, those assumptions turn out to be wrong, or simplistic, or obsolescent
in light of social change-change that sometimes occurs in response to the statute itself.
 - non-exclusivity – Judge Posner's focus on reconstructing original legislative intent slights other values that we should
respect when interpreting statutes. At least some statutory schemes ought to be efficacious over time and across changing
circumstances.

 B. Purposivism - purposivism is subject to the same problems as intentionalism- unrealistic assumptions, indeterminacy, and
competing values.
 - unrealistic assumptions - justifications rest upon questionable assumptions about the legislative process– an assumption
that the legislature is filled with reasonable people who will reach reasonable, purposive results by following established
procedures.
 Public choice theory, the application of economic analysis to public decision making, posits that "rational” legislators
responding to rational interest groups will not, in fact, produce purposive statutes.
 Economic game theory suggests that, frequently, nothing more than who controls the legislature's agenda determines
legislative results.
 Interest group theory suggests that much legislation simply distributes benefits to well-organized groups, typically at the
expense of the general public.
 To speak of a statute’s "purpose" is incoherent, unless one means the deal between rent-seeking groups and reelection-minded
legislators.
 Leading scholars of legislative institutions stress the ability of committees and power figures to manipulate legislative
procedure, and the importance of "subgovernments" of bureaucrats, lobbyists, and subcommittee leaders who push the
legislative agenda toward distributing favors to organized groups.
 - indeterminate - The complex compromises endemic in the political process suggest that legislation is frequently a congeries
of different and sometimes conflicting purposes. How, then, can the overall purpose control statutory interpretation, when it
is clear that Congress itself did not believe in it without reservation?
 - non-exclusivity – purposivism cannot be accepted as a general theory because it neglects other values the author consider
critically important. It doesn’t consider other theories – important of text as well as intent.

 C. Textualism - two varieties of textualism

 1. The stricter version posits the statutory text as (at least ordinarily) the sole legitimate interpretive source.
 2. The less ambitious version, variety of textualism uses statutory language not in place of, but rather as the best guide to,
legislative intent or purpose.
 Textualism is subject to the same problems as intentionalism- unrealistic assumptions, indeterminacy, and competing values.
 - unrealistic assumptions - Whether or not language itself is intrinsically indeterminate, one would have to concede that
general, politicized terms such as "discrimination" are susceptible of different interpretations
 - An additional problem with any strict textualist theory is its failure to consider that the meaning of text is strongly influenced
by context - One word can me two or more things. Word change meaning over time, years and decades.
 - interpreter’s own context, including current values. Philosophy and literary theory suggest to us that interpretation cannot
aspire to universal objectivity, since the interpreter's perspective will always interact with the text and historical context -
current values cannot easily be excluded from statutory interpretation.
 A POSITIVE MODEL OF PRACTICAL REASONING IN STATUTORY
INTERPRETATION

 Positive Descriptive Theory of statutory interpretation - Court does not follow any one of the foundationalist theories. We now
suggest that these observations form the basis for a positive theory which refuses to privilege intention, purpose or text as the
sole touchstone of interpretation, but which both explains the Supreme Court’s practice in statutory interpretation and, at the
same time, reflects the insights of modem theories of interpretation.
 1. statutory interpretation involves creative policymaking by judges and is not just the Court's figuring out the answer that was
put "in" the statute by the enacting legislature. An essential insight of hermeneutics is that interpretation is a dynamic process,
and that the interpreter is inescapably situated historically. "Every age has to understand a transmitted text in its own way,"
says Gadamer.
 Gadamer's primary metaphor for interpretation is a "fusion of horizons” - The historical text contains assumptions and
"preunderstandings” -a "horizon"-which is often quite different from the "horizon" of the later interpreter. Because the
horizons are alienated from one another, the interpreter can never completely recreate or understand the text's horizon.
 Common ground is always possible, Gadamer says, because the temporal gulf is filled with traditions and experience that
inform our current horizon and link it with the previous one.
 Hermeneutics suggests that the text lacks meaning until it is interpreted. A text, then, is not meaningful "in itself," apart from
possible interpreters and their historical contexts. Nor is it meaningful apart from the task of the interpreter. Gadamer argues,
following Aristotle, that one does not "understand" a text in the abstract, without an "application" of the text to a specific
problem.
 2. Creation of statutory meaning is not a mechanical operation, it often involves the interpreter's choice among several
competing answers. Although the interpreter's range of choices is somewhat constrained by the text, the statute's history, and
the circumstances of its application, the actual choice will not be "objectively" determinable; interpretation will often depend
upon political and other assumptions held by judges.
 3. In make these choices, they are normally not driven by any single but are instead driven by multiple values. Both
hermeneutics and pragmatism emphasize the complex nature of human reasoning. The pragmatistic idea that captures this
concept is the "web of beliefs" metaphor. We all accept a number of different values and propositions that, taken together,
constitute a web of intertwined beliefs about, for example, the role of statutes in our public law.
 Apart from the web of belief there are two other metaphors - pragmatist tradition and hermeneutical tradition.
 Pragmatist tradition - consider Peirce's contrast of the chain and the cable.’ A chain is no stronger than its weakest link,
because if any of the singly connected links should break, so too will the chain. In contrast, a cable's strength relies not on that
of individual threads, but upon their cumulative strength as they are woven together. Legal arguments are often constructed as
chains, but they tend to be more successful when they are cable-like.
 Focusing on all theories of interpretation to work together, although sometimes some of the theories can’t work together in
some cases. The cable metaphor suggests that in these cases the result will depend upon the strongest overall combination of
threads. That, in turn, depends on which values the decisionmakers find most important, and on the strength of the arguments
invoking each value. That, in turn, depends on which values the decisionmakers find most important, and on the strength of
the arguments invoking each value.
 Hermeneutical circle: A part can only be understood in the context of the whole, and the whole cannot be understood without
analyzing its various parts. To evaluate the text, the interpreter will consider it in light of the whole enterprise, including the
history, purpose, and current values. In other words, none of the interpretive threads can be viewed in isolation, and each will
be evaluated in its relation to the other threads.
 Hermeneutical circle suggests that a true dialogue with the text requires the interpreter to reconsider her preunderstandings as
she considers the specific evidence in the case, and then to formulate a new understanding, which in turn is subject to
reconsideration.
 Heidegger - Reader‘s expectation
 Gadamer assertion – A person trying to understand a text is prepared for it to tell him something.
 The "to and fro movement" involved in the hermeneutical circle is not just the interpreter's movement from a general view of
the statute to the specific evidence and back again; rather, it requires her to test different understandings of the text in an
ongoing effort to determine its proper interpretation.
 funnel-shaped for three reasons
 First, the model suggests the hierarchy of sources that the Court has in fact assumed.
 Second, the model suggests the degree of abstraction at each source. The sources at the bottom of the diagram involve more
focused, concrete inquiries, typically with a more limited range of arguments. As the interpreter moves up the diagram, a
broader range of arguments is available, partly because the inquiry is less concrete.
 Third, the model illustrates the pragmatistic and hermeneutical insights explained above: In formulating and testing her
understanding of the statute, the interpreter will move up and down the diagram, evaluating and comparing the different
considerations represented by each source of argumentation.
 A. Textual Considerations
 B. Historical Considerations
 C. Evolutive Considerations
 D. Other Considerations - statutory interpretation will consider current values, such as ideas of fairness, related statutory
policies, and (most important) constitutional values.
 USING PRACTICAL REASONING TO EVALUATE THE SUPREME COURT'S
STATUTORY INTERPRETATION DECISIONS

 Looking at the court decision through the funnel theory – two stands
 One way is to accept the framework and to analyze the Court's thoroughness and persuasiveness in considering the various
factors and in making political choices in the cases.
 Another way is to question the Court's apparent hierarchy of values that underlie the funnel-shaped model.
 If, as we suggest, the Court ordinarily applies practical reasoning to the interpretation of statutes, does the Court do so
carefully and persuasively? Do its opinions adequately reflect that process of practical reasoning?
 Court seems to prefer "objective" evidence based on (majoritarian) expectations via the foundationalist approaches whereas
"subjectivism" and "relativism“ should be accommodated and appreciated in interpretation. Modem philosophers and
historians are moving in this direction.
 Statutory interpretation ought to make a similar movement, acknowledging that to admit that legal interpretations often cannot
be established according to clear objective criteria is not to bestow upon the judge unconstrained freedom to reach any
interpretation she desires. If performed candidly and with empathetic appreciation for the point of view of others (the classic
assumptions of hermeneutics), the to and fro movement among the considerations suggested by our practical reasoning model
is a more legitimate approach to statutory interpretation than the supposedly "objective" foundationalist approaches.
 A. Internal Critique of the Court's Practical Reasoning.
 Court should abandon its foundationalist rhetoric, because it only impedes an understanding of how the Court actually engages
in statutory interpretation and accept the practical reasoning approach or better still acknowledge that it is being used.

 B. External Critique of the Court's Reluctance to Admit the Importance of Evolutive Factors.
 C. Practical Reasoning in Statutory Interpretation: Working Beyond the Counter-Majoritarian Anxiety.
 JUDICIAL REASONING AND
INSTITUTIONAL/STRUCTURAL FACTORS
 Public Law/Judicial Behaviour Theories
 Regime Politics:
 Judges and courts seek to advance the political agenda of the governing coalition and the party regime
that appointed or promoted judges. When and why do judges depart from regime politics?
 Legal Institutionalist Approach:
 Institutional norms, jurisprudential traditions, and other institutional factors help explain why judges
decide cases independently of the partisan commitments of the regime in power.
 Strategic Approaches:
 Public confidence and popularity of courts
 Relatively low trust in other institutions
 JUDICIAL BEHAVIOUR IN INDIA

 Regime Politics:
 Immediate post-independence period: Positivist interpretation
 The positivist model of judicial review was preferred by many leaders of the National Movement, including
Prime Minister Nehru.
 Nehru said: “Within limits, no judge and no Supreme Court can make itself a third chamber (of the
Legislature). No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament
representing the will of the entire community. If we go wrong here and there, it can point it out but in the
ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it
comes in the way, ultimately the whole Constitution is a creature of Parliament.” (CAD Vol 9, 1195)
 Possible reasons: History of national struggle, constitutional project of social transformation, influence of
British principle of parliamentary sovereignty
 JUDICIAL BEHAVIOUR IN INDIA

 Regime Politics:
 AK Gopalan v. Union of India AIR 1950 SC 27:
-- Interpretation of ‘procedure established by law’ in Art. 21
-- ‘law’ is enacted law or just law?
-- “The courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed
to pervade the Constitution but not expressed in words” (Kania CJ)
 Immediate Post-Emergency Period:
 The Court, in the immediate post-Emergency period, was led by a group of judges selected by the Gandhi
regime during the 1970s based on their social-egalitarian worldviews.
 JUDICIAL BEHAVIOUR IN INDIA

 Beginning in 1971, the Gandhi regime began selecting judges that were perceived to share the political
ideology and constitutional worldview of Gandhi.
 In addition, the Gandhi regime challenged the seniority norm, bypassing the three senior judges who were
all in line to become Chief Justice as a result of their support of the basic structure doctrine as part of the
majority of the Kesavananda decision.
 Gandhi then arguably packed the Court by replacing these three judges with Justices P.N. Bhagwati, V.R.
Krishna Iyer, and, later, P.K. Goswami.
 JUDICIAL BEHAVIOUR IN INDIA

 Strategic Approaches:
 According to the strategic model, judges temper their own political and institutional values in judicial
decision-making with calculations about external political constraints or opportunities.
 Baxi argues that the Court, motivated by institutional preservation considerations, did act strategically in the
late 1970s and early 1980s in deferring to the Central Government. ' In Union of India v. Sheth and the
Judges' Case, the Court deferred to the Janata and Gandhi governments with respect to the Executive's
ultimate power of judicial transfers and appointments. Furthermore, the Court deferred to the political
regime in economic policy and national security. At the same time, the Court strategically asserted a new
governance-accountability function in monitoring government lawlessness and arbitrariness, as illustrated
by the Court's decisions in Hussainara and Bandhua Mukta Morcha v. Union of India.
 JUDICIAL BEHAVIOUR IN INDIA

 Legal-Institutionalist Model:
 From positivism to structuralism: Battle over property rights
 Basic Structure Doctrine and the Emergence of Structuralism
 Court’s role as perceived by itself
 Vindicated by Emergency
 In the post-Emergency period, the Court sought to atone for its acquiescence to the Gandhi regime during the
Emergency rule period in the Shiv Kant Shukla decision.
 The institutional model may also provide insight into the Court's activism in the Second and Third Judges' Cases, in
which the Court asserted control over judicial appointments and transfers. According to an analysis of these
decisions, and interviews with experts, the decisions were motivated by the justices' concerns regarding continued
politicization of the judicial process by the government in the decade following the Court's decision in the Judges'
Case, and the adverse impact of that politicized process on judicial independence, the integrity of judges, and the
functional efficiency of high courts.
 JUDICIAL BEHAVIOUR IN INDIA

 The Court’s post-emergency activism concerned the following main themes:

 (i) liberal interpretation of Fundamental Rights and Directive Principles, so as to empower the people
and especially powerless minorities;
 (ii) procedural innovations facilitating access to the courts, and the growth of public interest litigation;
 (iii) transformation of judicial procedures from adversarial to polycentric and quasi-legislative; and
 (iv) enhanced protection of the independence of the judiciary.
 JUDICIAL BEHAVIOUR IN INDIA

 Elite Institutionalism:
 How the unique institutional environment and intellectual atmosphere of courts shape the
institutional perspectives and policy worldviews that may drive (or discourage) judicial activism and
assertiveness.
 The identity of judges as members of the Supreme Court and judicial branch, and their professional
alignment with the Court as an institution are a source of the judges' values and motivations.
 It seeks to understand how the broader national currents of political, professional, and intellectual
elite opinion shape judges' judicial policy worldviews and judicial activism and assertiveness.
 JUDICIAL BEHAVIOUR IN INDIA

 Judges engage with other professional and intellectual elites, including lawyers, academics,
government officials, media elites, business leaders, NGO activists, and other groups in India through
discourse in academia, law, journalism, and other fora, as well as in informal settings.
 As judges are actively part of these elite networks, and participate in the formation of political and
intellectual discourse on major national issues, the broader social justice and liberal reform meta-
regimes of India's political and intellectual elite shape judicial perspectives, and drive judicial
activism.
 It illustrates how both the institutional context (including judges' education, professional training, and
socialization) and the professional and intellectual elite atmosphere of courts are not only a source
judges' institutional values and policy worldviews, but also motivate and constrain judicial decision-
making.
 JUDICIAL BEHAVIOUR IN INDIA

 The Meta-Regime of Social Justice (1970s and 80s)

 The Indian Supreme Court's activism in developing PIL in the 1980s arguably reflected a larger populist ethos of
social egalitarianism within the Gandhi-led Congress Party, legal and professional elites, activists, and other elite
classes.
 In interviews, Justice Bhagwati stated that he was motivated by the desire to uplift the poor by expanding the
public interest jurisdiction of the Court, after witnessing the extreme poverty of adivasis……” I saw stark naked
poverty, and the utter helplessness of the people, they came and attended their meetings and looked upon me with
awe, but they never tasted the fruits of this whole system of justice - justice was far, far removed from them”.
 Justice Iyer also recounted his own experience as a young lawyer who was thrown into jail (under the existing
preventive detention laws) for defending communists and other dissident groups in the 1950s. Iyer had firsthand
experience as a prisoner, and later, as the Minister for law, power, prisons, irrigation, and social welfare portfolios
in the communist state government of Kerala, Iyer spearheaded prison reform as one of his main objectives.
 JUDICIAL BEHAVIOUR IN INDIA

 Although PIL was consonant with Gandhi and the Congress Party's social-egalitarian reform agenda,
the larger ethos of social egalitarianism that animated the Indian Supreme Court's activism in PIL also
had roots within India's broader professional and intellectual push for legal reform.
 Justice Bhagwati noted that the “law which we are now administering is the . . . law of a social welfare
state which is moving in the direction of socialism, law which is designed to serve the interest of the
weaker sections of the community including peasants and workers.” Bhagwati later outlined his social-
egalitarian goals in the Indian Judiciary, observing that ... “the entire culture of the judicial process has
to be [geared] to the goal of social justice which is the objective of the Constitution and irrespective of
whether the politicians fulfill this objective or not, it has to be fulfilled by the courts .... Social justice is
a constitutional fundamental right and a socialist order, an economic imperative.”
 JUDICIAL BEHAVIOUR IN INDIA

 The Liberal Reform Regime (1990 to 2007):

 The social-egalitarian worldviews of judges and other professional and intellectual elites gradually faded
away in the post-1990 era as India shifted from socialist-statist to neoliberal free-market policies. Although
professional and intellectual elites generally supported the new economic reforms, they grew increasingly
frustrated with governance failures and corruption in the Central Government.
 Coalition Politics and decline in public confidence
 Within the Court, there was a profound shift in institutional conceptions about the proper role of judges in
upholding the rule of law and promoting good governance. A new group of activist judges, including Chief
Justices Venkataramiah, J.S. Verma, A.S. Ahmadi, and Justice Kuldip Singh, embraced a much more assertive
vision for the Court in governance matters.
 JUDICIAL BEHAVIOUR IN INDIA

 Contemporary Meta-Regime?
 Populist?
 Judicial Restraint?
 Popular sovereignty?
 Judicial Deference?
 Any other ?