Postures of Judging: An Exploration of Judicial Decisionmaking

Abstract

This Article critiques Ronald Dworkin’s answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin’s heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the Article examines the posture of a judge — a judge’s physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge’s toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin’s principled jurisprudence cannot explain. The Article focuses on Fyodor Dostoyevsky’s The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. Through a comparison of law and literature, the Article describes how literature grapples with similar questions as law, and how literature can instruct us about the successes and failures of certain postures. ____________________________ No elaboration of statute law can forestall variant cases and the need of interpretation ad hoc. Moral and legal schemes that attempt the impossible in the way of definite formulation compensate for explicit strictness in some lines by implicit looseness in others. The only truly severe code is the one that forgoes codification, throwing responsibility for judging each case upon the agents concerned, imposing upon them the burden of discovery and adaptation.