Judicial impartiality in the application of the law does not automatically guarantee the quality of adjudication. The administration of justice is much more fragile than people generally assume, asserts legal philosopher and PhD researcher Iris van Domselaar. In her thesis, she lists a number of professional qualities that judges need in order to be able to make good judgements. Van Domselaar will defend her PhD thesis on Friday, 7 March at the University of Amsterdam (UvA).
Besides knowledge of the law, judges must have specific professional virtues, such as good powers of perception, a sense of justice and judicial courage. These virtues are not innate, and acquiring them is a demanding process. ‘Law programmes should focus more on professional training. Often, the study of law mainly focuses on knowledge of the law – a one-sided emphasis that affects the quality of adjudication’, says Van Domselaar. The aim of her list of judicial virtues is to contribute to a ‘shared language’ that facilitates the exchange of knowledge on the quality of adjudication. There is no such language at present.
In recent years, the judiciary has devoted considerable attention to making the formulation of judgements more comprehensible and transparent as a means to increase the legitimacy of the courts. Van Domselaar argues that making citizens feel their interests are being taken seriously is key to that legitimacy. A certain degree of empathy is crucial. ‘Sometimes, judicial decisions in comparable cases can differ enormously. Different judges simply value the facts differently. It is pointless and even detrimental to the quality of adjudication to seek greater uniformity through systematisation. The administration of justice is not a system. Yet, for decisions to be legitimate, it is important that citizens know their specific interests have weighed into the judge’s decision’, according to Van Domselaar. She calls this empathetic method of administering justice a form of ‘civic friendship’. The ideal judge is not only virtuous; he also rules from the perspective of the ‘civic friend’. ‘Some judges are already doing this in practice, but it is insufficiently recognised as a reflection of quality.’
Van Domselaar believes the administration of justice is more fragile than people think, even when it meets all the quality requirements. Judges sometimes have to make tragic choices. For example, if children have to be placed in care, even the right decision brings with it a tragic loss. The tragic nature of such a decision deserves explicit recognition, according to Van Domselaar. She calls this a ‘form of respect for the losing citizen’. In this way, judicial decisions can form an incentive for legislators and policymakers to avoid such tragic decisions in future.
Van Domselaar summarises the three elements mentioned – legal virtues, civic friendship and sensitivity to tragic choices – in her new approach to adjudication as ‘The Fragility of Rightness’.
Iris van Domselaar: The Fragility of Rightness. Adjudication and the Primacy of Practice. Supervisor: Professor D.W.J.M. Pessers. Co-supervisor: Professor F.C.L.M. Jacobs.
Van Domselaar will defend her PhD thesis at 14:00 on Friday, 7 March in the UvA's Agnietenkapel at Oudezijds Achterburgwal 231 in Amsterdam.