Nagel and strategies for judicial candour

Yane Svetiev, Columbia University

Thomas Nagel Concealment and Exposure: And Other Essays, New York, Oxford University Press, 2002 (256 pp). ISBN 0-19515293X (hard cover) RRP $59.00.

My original undertaking was to review Thomas Nagel’s latest book Concealment and Exposure, which collects essays on several, seemingly disparate topics. After re-reading the book I decided that it presented a neat entry point into debates, which have been continuing for some time (particularly in Australia and the United States), about the proper role of judges, and the function of law more generally, in a liberal democracy.

Nagel’s book collects the essays in three sections. The first, entitled ‘Public and Private’, contains commentaries inspired, in part, by the impeachment of US President Bill Clinton and the events that precipitated it. In a defense of sexual privacy, Nagel suggests that the impeachment stemmed from an immature American interest in the private sphere driven by a ‘childish’ (p. 23) or ‘adolescent panic’ (p. 45) about sex. For Nagel, the private sphere deserves to remain beyond scrutiny even when the individual decides to run for and occupy a public office. He links this issue to other settings in which ‘reticence and limits on disclosure and acknowledgment’ are justified (p. 5). Thus, the theme of reticence versus exposure.

The second group of essays, entitled ‘Right and Wrong’, deals with liberalism in moral and political theory (beginning with an excellent exposition of the work of John Rawls). Some essays deal specifically with the proper functions of different political and decision-making institutions in a liberal democracy. Nagel refers to the debate between legal philosophers Ronald Dworkin and Joseph Raz about the appropriate judicial response in cases of ‘gaps in the law’—namely, cases in which the relevant legal materials do not determine the ‘verdict’ to a legal problem (p. 139). Nagel also expresses doubts about Waldron’s (1999) ‘desire to expand the political to embrace as many of our collective disagreements as possible’ (p. 146) based on the view that legislatures, and not courts, are the most appropriate arena for deciding the fundamental questions that face society. Thus, the question of the role of the judiciary.

The third group of essays, entitled ‘Reality’, contains contributions to philosophical debates on objectivity and truth, including, as might be expected of Nagel, persuasive moral realist criticism of (those that have come to be known as) philosophical pragmatists, like Richard Rorty. Thus my interest in legal pragmatism.

‘What link to judges and judicial decisions?’, the reader may well still wonder at this point. Even to someone who has read Nagel’s book the link may be elusive.

Some legal commentators advocate a judicial role constrained by a ‘strict legalist’ approach.

Consider the debate among legal commentators or practitioners who advocate a judicial role constrained by a ‘strict legalist’ approach and those who deride the notion that the law is either objective or internally consistent, and who call for greater ‘honesty’ or ‘candour’ about the factors that are truly at play when judges reach their decisions. The latter camp claims that the resort to ‘legalism’ simply obscures, or conceals, those factors out of fear (presumably by the legal and political community) that exposing them would undermine the legitimacy of legal institutions in a democratic order: judges playing politics, or inserting their personal values or policy preferences in deciding legal cases, and other anathemas that do not fit well into traditional conception of the rule of law.

Along similar lines, some legal academics and judges disavow the claim that any particular theory of judicial interpretation and decision-making (legal formalism, following original intent, purposive interpretation) is worthy to be elevated above others either in terms of efficacy or democratic legitimacy. Instead, they argue that (in the face of legal indeterminacy) judges should just decide cases by reference to ‘what works’. Unsurprisingly, this eclectic group of jurists are referred to as legal pragmatists (Grey 1996; Posner 2003).

My aim in this brief article is not to answer these large questions. Instead, I wish to clarify and map out the debate. I do this because those who engage in public debate appear to be adhering to dramatically different conceptions of the law, conceptions which may be to a large extent inconsistent or incommensurate with each other (Davidson 1986). And yet they participate in the same debate, they use the same vocabulary, and they respond to each other’s arguments. Are some of the participants in these debates naive, or worse still manipulative (Dewey 1927); or are they perhaps misunderstanding each other’s claims? I don’t know the answer to this question either. But if I sketch the contours of the debate, others can judge what positions a commentator can consistently hold, and any rogues will be exposed.


When a legal question presents itself before a common law court, the judge, in deciding the case, must take at least two steps. First, she must reach a decision (or an outcome or verdict) in that case. In other words, this is a final answer to the controversy, favouring one party to the litigation and awarding that party the relief it seeks. Second, the judge is ordinarily expected to supply reasons for that decision (Schauer 1995). The relevance of the order in which these two steps are taken will become apparent in a moment.

Consider two dramatically different conceptions of the decision-making process I have just described; conceptions I exaggerate for the purpose of mapping the debate. One view (let’s call it ‘strict formalism’) understands the decision-making process as analogous to solving a complex, though tractable, mathematical equation. Perseverance and care will, whatever the complexity, yield a solution to the problem.

An alternative conception (call it ‘unconstrained law’) holds that the judge in each case will consult the platform of a political party, and choose the outcome that would be favoured by that platform. Or, since no political platform is sufficiently comprehensive, the judge may consult their own experience, values or some other heuristic. To embellish an already extreme example, the judge may decide (more or less) consistently against corporations, or against criminal defendants and so on.

A grab bag of arguments is used to impeach judicial fidelity in public debate.

Consider the relationship between reasons and outcome in the two processes I just described. Under strict formalism, the two are inseparable—you cannot reach the outcome without going through the steps that take you there. Sometimes the outcome may have more than one solution (just like in a quadratic equation), but whatever that answer is, the judge exercises no discretion in reaching it. The reasons demonstrate the steps taken and will therefore reveal any error or manipulation.

On the ‘unconstrained law’ view, by contrast, the answer—namely, which side wins—comes first, the reasons are then constructed out of the available legal materials in a way which is acceptable and legitimate to the legal and wider community. (Of course, what constitutes acceptable legal materials and legitimate legal moves is also contested.)

It follows from what I have said that the view we hold of the law and the extent to which legal rules constrain judicial decision-making cannot be divorced from the way in which we evaluate and criticise judges and the arguments that we use in such evaluations. Unfortunately, public debate often allows slippage, and a grab bag of arguments is used to impeach judicial fidelity. But this is precisely what opens up the possibility for detecting demagogy and manipulation.


If the judicial process resembles the ‘strict formalism’ approach, those who publicly lambast alleged judicial excesses should not have much to be concerned about. Any errant, activist or otherwise, judges will be exposed by the illegitimate steps they take in reaching a judicial solution and their influence will be minimal because their reasoning will not persuade the legal or wider community.

The ‘strict formalism’ view is the one that is most consistent with the traditional conceptions we hold (perhaps unconsciously) of the rule of law and the judicial process. In a representative democracy, strict formalism simultaneously solves a few problems: legislatures can act to achieve social goals through generating rules, while those rules also ensure the accountability of the judges as the legislature’s agents.

The problem is that, of the two implausible views, the strict formalist view is the more implausible. The variety of legal texts, the inherent ambiguity of language, the multiplicity of available legal moves (following or distinguishing precedent, re-interpretation of prior decisions, just to name a few), the contestability of the very notions of legal reasoning and legal texts, all combine to ensure that there is no one path to the legal answer.

We might also consider a softer version of strict formalism—namely, that the law has some internal logic, which is not always immediately available to resolve particular decisions, but emerges over time if most judges adhere to legitimate forms of reasoning. Even under this softer version, the question still remains: how do judges decide the cases before them, if the logic of the law only develops and constrains ex post? And in any event, on this view activist or errant judges are not a significant problem either—if they engage in illegitimate reasoning, their errors are immediately obvious. If their reasoning seems valid on the surface, but actually departs somehow from the internal logic of the law, it will ultimately not make much difference, because the internal logic emerges over time and cannot be disturbed by a few outliers that wash out in the long run.

The most vocal critics of activist judging use the vocabulary of disrespect for the law.

Note however, that the most vocal critics of activist judging use the vocabulary of disrespect for the law. This suggests they subscribe to some variant of the formalist view of the law, which, as we saw, should give them little reason to be overly disturbed. Unless, of course, they believe that the law is not much of a constraint on our judges after all—in which case the cries of disrespect for the law are disingenuous.


If a more accurate representation of the judicial process is such that no strict relationship exists between the legal tools (texts and legitimate modes of reasoning) and the legal outcomes, then the ‘activism’ problem is also not alarming. Governments appoint judges, and do so to reflect their own policy views (which presumably reflect, more or less, the current political and social consensus). Judges continue to reflect those preferences on the bench. The judiciary is, thus, the collective wisdom of past governments, ruling with a dead hand if you want. On this view, errant judges could be criticised because they continue to reflect past political views on the bench (which might not reflect the current political consensus), but they certainly cannot be accused or criticised for their disrespect of the law. The law imposes little constraint and gives them a fair amount of flexibility to reflect those past views (or, for that matter, to adjust their views)—and they don’t have to conform to current majorities. Maintaining a degree of systemic balance is precisely their role—the system holds on to the wisdom of the past as a stabilising device. If new majorities are stable and persistent enough, their views will be reflected by the judiciary over time too.

Most lawyers who pause to reflect, whether they would openly acknowledge this or not, recognise that the outcomes of cases are largely unconstrained by the legal texts. Evidence of the prevalence of this view abounds. Domesticating the inherent uncertainty and indeterminacy of legal texts is the very first step in educating new law students since the law thrives on, and the profession exists because of, ambiguity. The multiple levels of appeal and the frequent disagreement among judges and lawyers on the answers to legal problems even when using purely legal argumentation both suggest opportunities for deliberation within which judicial choices are made and crystallised.


Note however, I said that most in the legal community believe this, whether they openly acknowledge it or not.

If the law does not significantly constrain legal decision-making, our confidence in both the role and the meaning of law is critically endangered. And, as a response, either ‘concealment’ or ‘exposure’ of this fact (and consequently the actual reasons for reaching legal decisions) could be legitimate strategies for the hapless judge.

Under the concealment strategy, judges (and not only judges) are aware that all kinds of ‘extrinsic’ factors and considerations influence the way they reach legal decisions. However, whatever those factors are, they cannot be revealed by the reasoning. Thus, only legitimate legal categories and forms of argument are available to explain how they arrived at their answer, however that answer was actually reached in practice. This imposes some constraint on the judge, in that she cannot use extra-legal forms of reasoning or sources of authority. But these are not significant constraints—the able lawyer-judge will be able to jump the hurdles and steer away from the traps to justify the outcome she desires. The system is perpetuated by a limited form of accountability. Judges can reach whatever decisions they wish, by whichever route, so long as they can supply reasons that sound sufficiently ‘legal’.

Exposure is an alternative strategy—the one presumably advocated by those who insist on honesty and candour. But what does ‘exposure’ entail? If they recognise and accept that legal rules neither supply the answers nor are a (significant) constraint on decision-making, what are judges to do? What kind of candour is appropriate and legitimate in their reasons? Judges can hardly say the legal answer was based on habitual patterns of thought such as, for example, their general dislike of asylum seekers or distrust of their plight, or alternatively their deep suspicion of the police and prosecuting agencies, or their religious (or other moral) beliefs, or their dislike for their colleagues on the bench and so on. Nor would we want them to.

What kind of candour is appropriate and legitimate in judicial reasoning?

Maybe, then, candour simply means openly acknowledging that the law does not supply the answers, freeing litigating parties to argue the case in terms of the underlying policy nature of the problem presented to the court. This is more likely to guide the judges towards the optimal solution to that problem, instead of the use of misleading legal code words and categories. That sounds like asking judges to decide based on ‘what works’. But would we then be asking too much of our judges? Are they to become experts in all kinds of disciplines that might bear upon the myriad of problems that come before them? Would they be able to bear that strain? Or would they again resort to simple presumptions and habitual short-cuts that simplify the issues before them?


The limits of judicial decision-making that we have been considering counsel against imperial conceptions of law, in which the judiciary is seen to be capable of solving all kinds of complex problems, and suggest a third way of thinking about the law and judicial decision-making. If legal rules do not supply answers to the cases before the courts and do not sufficiently guarantee judicial accountability, and, at the same time, we cannot expect judges to be experts at everything or ultimate arbiters of either expert disagreement, or the values of society, then perhaps their role is to create the space for problems to be resolved by others who are more likely to do so effectively (Dorf 2003, p. 877). Note, however, this does not have to mean judges favouring one side of a legal dispute over another, under the pretence of following the letter of the law (the concealment route). Nor does it necessarily counsel minimalist deference to other arms of government— that is, the legislature or the executive (Sunstein 1996, p. 7). Often such bodies either do not know how to solve particular social problems, or are gridlocked, or are uninterested in the plight and the problems of some communities, while overly attentive to the interests of other groups that can mobilise resources to invoke the legislative process. And even when the legislatures act, legislative solutions are not guaranteed to be either appropriate (particularly in a complex, fast-changing world) or self-implementing.

But then we have apparently come full-circle and have found no effective ‘candour’ solution. Is this another occasion on which reticence may be counselled?

Yet another alternative would be that the non-imperial judiciary does not hide from the problems it is presented with by invoking either the fiction that legal rules determine and guide action (Taylor 1993), or the fiction that other arms of government should and will solve the problem, when they have not, or have not done so fully or effectively. Instead, the non-imperial judiciary might reach out to other actors who are already exploring solutions to the social problems presented, demand and supervise concrete actions to solve those problems, and stay its hand so long as such actions are forthcoming and effective. That sounds like deciding based on ‘what works’, and yet does not ask our judges to be panoptic central-planners (Dorf 2004; Liebman & Sabel 2003). It involves mechanisms of public problem-solving which overcome the limits of the standard public institutions, namely, bureaucracy or Schumpeterian representative democracy (Sabel 2005, p. 113). On this version of judicial candour, accountability is not based on rule-following (Sabel 2005, p. 135), but on exposing to public scrutiny compelling reasons for the choice of one way to achieve a common goal over another.


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Dewey, J. 1927, The Public and its Problems, Holt, New York.

Dorf, M. C. 2003, ‘Legal indeterminacy and institutional design’, New York University Law Review, vol. 78, p. 875–981.

Dorf, M. C. 2004, ‘After bureaucracy’, University of Chicago Law Review, vol. 71, p. 1245–73.

Dworkin, R. 1986, Law’s Empire, Belknap Press, Cambridge, Massachusetts.

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Liebman, J. & Sabel, C. F. 2003, ‘A public laboratory Dewey barely imagined: The emerging model of school governance and legal reform’, New York University Review of Law and Social Change, vol. 28, pp. 183–304.

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Raz, J. 1994, Ethics in the Public Domain: Essays in the Morality of Law and Politics, Clarendon, Oxford.

Sabel, C. F. 2005, ‘A real time revolution in routines’, in The Corporation as a Collaborative Community, eds C. Hecksher & P. Adler, pp. 106–56.

Schauer, F. 1995, ‘Giving reasons’, Stanford Law Review, vol. 47, p. 633–59.

Sunstein, C. R. 1996, ‘Leaving things undecided’, Harvard Law Review, vol. 110, pp. 6–101.

Taylor, C. 1999, ‘To follow a rule …’, in Bourdieu: A Critical Reader, ed. Richard Shusterman, Blackwell Publishers, Oxford, pp. 29–44.

Waldron, J. 1999, The Dignity of Legislation, Cambridge University Press, Cambridge.

Yane Svetiev is a doctoral candidate at Columbia University School of Law in New York, where he also held a teaching fellowship. He is currently working on his doctoral thesis on the institutions of the new competition policy.