This summer, a new season of the Dutch television program 'Kijken in de ziel' ('Looking into the Soul') was broadcast. After interviews with entrepreneurs, soccer coaches, politicians, journalists, psychiatrists, criminal lawyers and doctors, in this season twelve judges from different fields of expertise were interviewed about their profession. The judicial profession seems particularly suitable for such an interview program, because judges face difficult dilemmas on a daily basis; they often have to decide the fate of people's lives and their decisions can have severe consequences, such as imprisonment or the loss of parental authority. I highly recommend this series, not only because of the interesting topics that are discussed, but also because some controversial statements are made by judges, which stress the question of what to do with the inevitable existence of subjectivity in judicial decision-making.
One thing clearly stands out: for the most part the interviewees responded (very) differently to the same questions when it came to decision-making. I will give two short examples. Firstly, the responses to the question of ‘whether it is possible for judges to be completely convinced about their decisions’ obviously showed that judges have different conceptions of judicial decision-making. Some judges said (in the context of criminal law) that they never can, nor will, decide that a defendant should be found guilty if they are not completely convinced. They instead have to acquit, because they have to be absolutely certain that conviction is the best and only decision in a particular case. Others said that doubt is inherent in decision-making, as judges deal with legal rather than actual truths - they always decide on facts that took place in the past when the judge was not present. For them, absolute certainty can never be established. Secondly, do judges feel that they have to consider public opinion in a case which has a large impact on society? Of course, according to one judge, judicial power represents society and therefore judges may never ignore public opinion. No, said another judge, public opinion should certainly not be a part of the consideration: the judicial decision is and should be a purely legal judgment, without any societal sentiment.
These two examples alone clearly illustrate that subjectivity in judicial decision-making exists. In fact, subjectivity is inevitable. After all, judges differ in their conception of what makes a good judge and what it takes to make a just decision – and therefore, from these different conceptions, judges also decide differently in practice. This is one of the reasons why this program is so interesting: it demonstrates that complete objectivity does not exist and that there will always be subjective elements within every judicial decision. As judge Frank Visser says in the first episode (and I paraphrase): judges have to be very self-willed, because rules of law are not the only guideline when it comes to doing justice. It is intolerable to follow the rules strictly and, as a consequence, reach an unjust decision. Vissers conception of judicial decision-making shows us that in order to do justice, a human deed is necessary and the mechanical application of rules of law can lead to injustice. This is exactly what subjectivity in judicial decision-making is about: judges have to base their decision on rules of law, but they have a responsibility to literally do justice in every particular case.
However we could ask ourselves whether this series sheds light on the concept of subjectivity in a positive manner. This question springs particularly to mind following one of the most remarkable statements made in the first episode. One of the judges said she preferred to be considered nice above being just. She also said that she chose her profession because people have to listen to what she says - something she does not experience in her private life - and as a judge she gets the recognition she seeks. In my opinion this is a shocking and far too personal statement for a judge to make on television, not in the least because it contributes to the negative connotation that can result from the issue of subjectivity - and not only by legal scholars. In the last decennia faith in judicial power has decreased in our society. These kind of statements are certainly not helpful in restoring that trust, nor do they contribute to a better understanding of the difficult task(s) that judges have to fulfill. They do not help to make people accept judicial decisions and therefore these statements undermine the legitimacy of them. This is quite unfortunate, because subjectivity is a highly important theme that should be more emphasised in legal education, as well as in legal theory. Subjectivity cannot be simply ‘ruled out’: judges have discretionary competences and every judge will decide differently, even when the facts and rules of law are exactly the same. Rules of law cannot offer one standard solution and subjectivity should be welcomed because only there, within the leap that judges have to make from the abstract rule to the concrete case (cf. Scholten), justice can be done in the particular case and to the unique persons on whom the judge has to decide. It is important to stress that subjectivity should not be extended - but we have to deal with the question of what to do with this element. 'Kijken in de ziel' draws attention to this fundamental question.