Do Those Wise Judges Make Law? Or Do They Just Make Decisions?

I just want to round out this train of thought so that I can pick up some really interesting points raised in comments.    This is really only a very superficial look at the whole “wise judges” question, but you do have to start somewhere, right?

When I think of law, I think of a system of rules that applies generally to a lot of people.   So, for instance, the speed limit.  You can legally drive 60 mph.   You cannot legally drive 70 mph.   (I know the numbers may not be right, but you get the idea.)   If you are ticketed for driving at 70 you cannot legally defend by saying you were in fact driving safely or that you are the kind of driver who can safely drive at 70 even though many people cannot.    The rule (no more than 60) is of general application.  And we all know that.   So you can appropriately adjust your behavior.

Of course, the speed limit is a bit more complicated than that.  Many people I know tell me (have I mentioned that I don’t drive?)  that you can drive 65 without fear of a ticket.  Or that you can drive at the speed most traffic is traveling (which might be 65, but might not be).   This makes me think first, that the rule isn’t quite as cut and dried as it initially sounded, and second, that there’s discretion involved.   An officer might let you go right by driving 65, but she or he might also pull you over.   And what about 66?

Certainly the officer cannot pull over all those driving 66 so you know that there’s a chance you’ll be okay and a chance you won’t.   (We could think here about who gets to drive 66 and who does not, but this is a whole other (very large) topic and I’m not going there now.)

And even if you do get a ticket, if you show up in court you might be able to talk your way out of it.  Some people surely will be able to.  Some won’t.   (Again, I’m skipping the question of who can and who cannot.)     Some people might have explanations the judge accepts, some not.

All of which is to say that the seemingly clear legal rule (you can only drive 60) isn’t so clear.   And it isn’t actually of universal application, either.   But at least we can nod in the direction of those features–a clear rule of general application–even as we observe the complexity.

The wise judge deciding the fate of children may inhabit a totally different world.   Each case is unique, as each child is unique.  Each child has his or her own needs and each adult has their own capacities.  (I guess I’m seeing this as something like a custody case–and there’s a whole other set of issues raised there–where the judge is figuring out what arrangement is best for the child.)

You would want, perhaps, the judge to start with no preconceptions about what is good for children generally or what counts as a plus (versus what counts as a minus) but to make a new assessment each time, based on the specifics of that particular case, those particular people, this particular child.

I’ve already tried to point at the impossibility (or at least improbability) of anyone actually being able to do that.   But let’s just suppose they could.  Would that wise judge be making law?   Surely she/he would be making decisions.  Each case would end with a decision particular to the people involved.

But would that generate law?   Or would that be law?   If the whole idea is that each case was thought of as a unique and individual problem, then I think the answer is “no.”  There would be no general rules.   Cases that were similar (but not identical–no two cases are ever identical) could receive completely different treatment–because in any given case, the differences could matter.   It’s hard to see how one could even predict outcomes.   (Predicting outcomes is important because if I can confidently predict the outcome, maybe I don’t have to go through what will clearly be a time-consuming, expensive, and intrusive process.)

In fact, there are some ways in which a “wise judge” system might become predictable.   The judges might in fact have or develop biases over time.   This would mean they’d react to particular things in particular ways and you’d get general rules and more predictable outcomes.   Or the judges would develop “practices”–a much more neutral word than “bias” but perhaps amounting to the same thing.   Once a judge established a practice of valuing X over Y, you’d have rules and predictability.  But when this happened, you would no longer have a pure “wise judge” system.

I don’t for the moment mean to say whether I think this is a good thing or a bad thing.   It’s just an observation.   And it’s very hard for me to overcome my deep skepticism that a “wise judge” system is really even possible.   So I’ll just leave it here for now.