What should guide judges_ interest of society or wordings of the law?
What should guide judges when deciding what is “good” for society or good words of the law? What do we mean by good words? And what is “bad” in the making of law? Let’s explore these questions and consider the answers.
The “Good” Word or Interest of Society: All legal text makes mention of the societal interest or the common good. Judges, too, must look to the general welfare when deciding whether to grant a motion in court. Whether the law is good or bad to society is determined not only by the wordings of the law itself but also by the emotions and sentiments of those who compose the legal community. In deciding whether a case is of interest to society, the judge may look to the general public or the society for guidance.
In many cases, the public is represented by an attorney. Attorneys can be either professional or lay. A professional attorney represents the interests of the public. Lay attorneys, on the other hand, take on the interests of their client only to the extent that they can ensure their success. In these cases, the wordings of the law or the impact of such on the community are considerations for the judge.
Interest of the Law: The wordings of the law are subject to interpretation by judges. What should be deemed as relevant to one judge may not be deemed as relevant to another. Not all judges consider identical questions; some may take judicial notice of domestic violence while others may not. This double standard creates confusion for litigants. Some cases involving domestic violence, for example, may proceed irrespective of the views of the judge as long as the plaintiff’s interests are safeguarded.
Guideline For Decisions: What should be deemed relevant under what circumstances? This is where the social context factors come into play. A judge cannot make a decision on an individual basis, taking into account the individual characteristics of the person involved. What one judge considers irrelevant to another may have a significant social impact on the outcome of the case. For example, a rape case may often hinge on what was a victim’s background, but a different judge considering the same facts would find the crime to be rape.
Community-Based Judgment: Judges often make decisions about cases within their locality, even if they could have wider community interests at stake. For example, if a murder happened in one district, a judge may choose to focus on the criminal’s personality rather than the social context (a rich family, a stable home, a high-ranking social position) in which the crime had taken place. There are many instances when community involvement has meant the difference between a just and unjust result. What should guide judges: what does the law say? The same considerations that apply to other situations also apply here: what is fair, what is proportional? The decisions made by judges cannot be divorced from their societal meaning.
Equal Opportunity: A judge may take into account some differences in background or ability to act as a basis for granting an unequal or unfair advantage in a given situation. This is not a principle of the law per se, but a general principle of equity. What should guide judges: what is fair, what is proportionate? Again, the law may offer principles of justice, such as equal opportunity, but the effects of such principles in a particular situation may be subject to interpretation and application. What should guide judges: what does the law say?
When making decisions, judges do not always have a clear vision of the result they are expected to reach. They are required to make subjective judgments about each case at a time and rely on various extrinsic factors as well. Some of these factors may be subjective in nature. They may depend upon what the lawyer thinks the case is, or whether the lawyer thinks it is worth the expense of raising it. Such factors may also be objective in nature, such as the interest of the court, the impact on the community, the probability of success, etc.