25 Pages Posted: 3 Jun 2004
While the need for impartial judges in a liberal society seems rather undeniable, there is a question that attends the idea of them whose answer isn't so clear for liberalism. If we expect judges to be impartial, must they also relinquish or subordinate their partiality? Intuitively, the answer might seem to be a resounding yes. For we would be appalled at the judge who purports to be impartial but secretly decides the case on the seductive wink of a party's lawyer, its implications for the local Democratic or Republican parties, or some other self-indulgent reason. On the other hand, the insistence that judges be impartial is fraught with theoretical difficulties: what would a completely impartial judge look like, and precisely what judgments would qualify as impartial for starkly normative issues like abortion or school prayer? I shall argue in this essay that instead of juxtaposing impartiality against partiality, it is better to clarify the ways in which the latter can be harnessed to underwrite the former.
I develop my thesis in the following manner. I demonstrate some flaws with impartiality as conventionally understood by examining the American Bar Association's Model Code of Judicial Conduct, the paradigm by which legislators craft their rules for assessing judges' purported impartiality. I show that the Code presents to judges an ambivalent and potentially unstable set of instructions: at times, it daringly insists that judges embrace impartiality for its own sake, and other times, it guardedly admonishes judges to be sensitive to appearance and hence hide their partiality. The former instruction, I'll argue, suffers from some fatal problems while the latter, although rather limp and ambiguous in its ABA Code form, can be worked up into an attractive theory via the older and more rewarding account of judicial impartiality by John Locke. Contrary to some other liberals, Locke did not position impartiality's exclusive antithesis in its intuitive opposite of partiality. Instead, I suggest, he also juxtaposed it against absolute or arbitrary power. That substitution, I argue, permits us to explore the political uses of impartiality without being encumbered by needlessly difficult and perhaps ultimately unanswerable questions about its ontological character.
Keywords: judicial ethics, jurisprudence, impartiality
Suggested Citation: Suggested Citation
Kang, John M., John Locke's Political Plan, or, There's No Such Thing as Judicial Impartiality (And It's a Good Thing, Too). Vermont Law Review, Vol. 29, No. 1, January 2005. Available at SSRN: https://ssrn.com/abstract=553382