The Judiciary generally holds the power to interpret the law based on the legislative intent. However, some of their judgments may be counter-intuitive, if not contrary to the clear and unmistakable wording of the law. Of course, we cannot deny that judges have their own personal biases, which become more obvious when confronted with constitutional cases that are often philosophical. Sometimes, the prevailing political agenda may also influence the way judges ought to decide on a case. What, then, can be a plausible justification for the unpredictable deviations of judges from their earlier decisions?

And, most importantly, how can the discipline of law maintain its objectivity if the courts, from which binding precedents come, are sometimes subjective? What if, for example, the Supreme Court made a binding judgment based on faulty legal interpretations? How can law professors convince their students that laws have objective interpretations if they, too, are required to abide by the erroneous Supreme Court ruling?

  • Mr. 13567 - look at the history of the Dred Scott decision to see the answer to the second question in your second paragraph. It happens all the time. But there is no such thing as a final final decision. We are still waiting for that fat lady to break into song. – memphisslim Feb 4 '15 at 20:33
  • The easy answer is that the law is not rigorous, not fair and not objective, and trying to fit it into a rigorous, objective framework is like trying to fit a square peg into a round hole. It kind of sucks to realize many of our most cherished institutions are not rigorous and often are sloppy and nonsensical if we look at them closely enough. Yet the answer is not to desperately try to find some framework in which they make a semblance of sense. Accept the legal system and laws for what they are. – R. Barzell Mar 7 '15 at 21:07
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    In many jurisdictions, judges (even appellate judges) are elected and must run for office which means they must pander to the mob before and during such time as the wish to remain in office. – Ron Royston Jul 6 '15 at 0:13

I disagree with the end of the initial statement "The Judiciary generally holds the power to interpret the law based on the legislative intent" – they have the power to interpret the law, period, and "legislative intent" is just one of many theories of how to do that (one resoundingly rejected by Scalia, for example).

The root of the problem is that there is very little by way of universal metatheory for judicial interpretation. This is a consequence of the nature of our common law system, as contrasted with statutory systems as found for example in Europe. It was the original purpose of judges to make wise and just decisions, to create law, not just interpret it. This explains much about the nature of judicial (mis)interpretation in the US. Our justices are simply carrying on a long tradition, where strict reading of objectively-stated law is not the primary principle behind rendering decisions.

Generally speaking, justices are guided by the "meaning" behind a piece of written law. The principle stare decisis holds that once a "meaning" has been assigned to a piece of law, that meaning holds in all similar cases (though stare decisis is not actually enforceable). But justices have proven very adept at assigning all sorts of "meanings" to the words in a statute. If you believe that the "meaning" of a statute is the "intent" of the enacting Legislature plus executive, who make the law, you face the problem of establishing that there is indeed an intent. An individual can have an intent in voting some way (such as "get this thing passed so that I can go home, and not get crucified in November"), but getting from individual intent to "group intent" is probably impossible in principle (one reason is that no legislator ever reads and understands all of the bills that s/he votes on). Legislators are generally quite willing to pass unclear laws, in the hope that the courts will later define what the law means.

The book The Language of Judges by L. Solan gives a nice catalog of subjective interpretations of essentially the same facts of legal language, depending on the justice in question. T. Smith has written a number of articles ("Why Originalism Won't Die"; "Originalism's Misplaced Fidelity: 'Original' Meaning is Not Objective") which addresses the problem of "meaning" most clearly (from a non-linguistic perspective).


One approach is to claim "process objectivity" as opposed to "outcome objectivity" -- the legal system is organized in such a way that all involved know what the rules are -- legislators get to draft and enact laws, judges get to make decisions in court cases, the lawyers present cases on behalf of people in the courts etc. All of these processes are regulated in terms of rules, laws and regulations, that are objectively specified, e.g. written out; at least in those places where there is the "rule of law".
The (written) laws and regulations provide an objective framework within which the legal process plays out, even if individual aspects of that process do allow for subjective judgment calls. The picture I have in mind is that the subjective aspects of the process allow for some wiggle room in the exact outcome within (what should be) a rigid set of objectively specified constraints.

I'm more familiar with this kind of distinction in the context of the philosopy of science but should apply in the philosophy of law.


All phenomena have both qualitative and quantitative aspects. This is certainly true of the questions that judges are charged with deciding.

If the questions were solely quantitative, a purely objective approach would suffice. But the complex relationships that engender questions of law have ramifications - social, political, economic, moral - that require a different sort of judgment.

To speak of the legal system that operates in the United States, we can reflect on two choices the founders of the Republic made. They decided that the legislature would consist of one chamber of more or less proportional representation, and another, senior chamber that can be described as the elders or gray hairs of the republic, with no regard for proportional representation.

Out of these chambers come the elections to the federal bench. These are lifelong appointments, absent malfeasance, that are analogous to the role of the senate in the legislature. The judicial candidates are vetted and reviewed before being accepted for the quality of their thinking and demonstrated commitment to the welfare of the country - ideally speaking.

Of course, local judges are often elected by the people. Even here, the persuasive arguments for the electors' votes normally turn on the qualities of the elder - sagacity, cool-headed judgment, and commitment to common values.

This does not mean an occasional wild eyed character does not penetrate this system, but I am speaking in generalities.

So the answer to the present question could be that the nature of legal questions is such that purely objective criteria could never suffice to decide them. Qualitative judgment of a heavily vetted elder (of whatever age and gender, certainly) is more likely to give us optimal results - following, then shading then overturning precedents as circumstances dictate according to the elders' (we hope) sound judgment.


If you could write a perfect law, there would be no room for interpretation.

However, there are several major difficulties because language is imprecise. Legislators have an intent behind a law. In a perfect world, they transcribe this into a magical language which has no ambiguity. In reality, language has never been that precise. They do the best they can with their wording. If we demanded perfection, we'd probably need a system better than mere voting (such as only accepting words from a deity of your choice).

So given that the wordings only approximate the legislator's intent, an issue will arise when the exact wording of a law conflicts with the intent. When this happens, the law's wording must change to better reflect the intent. However, we don't like wordings to change. Also, some law are old enough that nobody is around to answer what the intent was. For this purpose, we give judges the ability to set precedent by interpreting a law.

Whether this is good or bad is open to debate. However, we have found it to be the best system of law we have to date. The legislative branch writes the words, and the judicial branch interprets them. Short of a dictator which can do both, this is the best that can be done with the limitations of linguistics.

  • The bug of imprecise language can be considered a feature -- it is what allows the law to be applied, hopefully in a self consistent way, across unanticipated situations. – Dave Feb 5 '15 at 13:44

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