Why Judges Are Not Constrained by Law and Facts
The "law school model" of judicial decision making, still an implicit core of legal education in the United States, was developed in an attempt to instill the scientific process into the legal discipline. According to this model, judges objectively apply the law to the facts of a case in order to reach a decision that is impartial and apolitical. Judges are socialized into this model of decision making and apply it rigorously after they ascend the bench, with the result that uniform fact patterns yield uniform judicial decisions ( Glick, 1983). At the core of this model is the concept that judges do not actively make public policy.
As is often the case, it is quite difficult to have much success when scientific models are applied to human activity. This is particularly true when one deals with the legal system, which is designed to both constrain human activity and protect fundamental individual rights. The legal system is designed to encourage appropriate human activity within certain amorphous confines and is administered by humans: Judges, lawyers, and court personnel all interact to affect judicial decisions. The main philosophical underpinnings of the legal system have been derived from the dictates of a dominant Judeo-Christian culture and secular philosophers generally associated with Western civilization. Hence, the concept of a legal system is at odds with a scientific model that attempts to base all activity on positive rational models.
For example, the decision to maintain a society with rules and courts in which disputes are resolved through the legal system instead of through the use of force is itself a subjective decision about the desirability of maintaining such a system. Certainly some groups, including primitive civilizations and anarchists, do not agree that such an ordered way of resolving disputes is either necessary or desirable. Further, the reliance on humans as litigants, lawyers, and judges is essentially a decision that human concerns are important to a political system