• Do Judges Play by the Rules? - A Reply to ''Playing by The Rules''

    Jurisprudence and legal interpretation are two themes that are dear to me. As such, I was quite ecstatic  when I received a copy of a book chapter titled: "Playing by the rules: the search for legal grounds in homosexuality cases - Indonesia, Lebanon, Egypt, Senegal" from Sam Ardi last week, especially because the front page mentions the terms "positivist" and "realism" in law and the chapter itself seems to discuss the role of interpretation in dealing with concrete legal problems. While the paper is indeed interesting and informative for a descriptive work on how different jurisdictions interpret their laws on homosexuality cases, I find that the core analysis lacks a coherent theme from jurisprudential and social science perspectives and this will be the focus of my comments today.


    To give context, the paper tells us the stories about 4 different legal jurisdictions, each facing a case on people alleged of performing homosexuality acts in the public spheres, and each having different results based on how the judges in the relevant jurisdiction read and interpret the laws governing the matter. In Indonesia, the judges did not find a specific legal provision to punish the act and therefore, they referred to the penal sanctions for publicly performing pornographic acts. In Lebanon, there are no explicit regulatory provisions that criminalize homosexuality, though there is a provision that refers to "carnal conjunctions against the order of nature". In this case, the majority of judges (at the appeal level) decided that the perpetrators did not perform such act by interpreting the meaning of "act against the order of nature" in reference to the social practice in Lebanon.

    Similarly, in both Egypt and Senegal, there is no explicit prohibition of homosexuality but the judges there were able to punish homosexuals through interpretation of vague and ambiguous terms such as "debauchery/fujur" in Egypt (claiming that this reading is a custom in Egypt jurisprudence as mentioned in a previous higher court case) and "act against nature" in Senegal (though the case was later dismissed by Senegal's court of appeal based on procedural matters, and therefore they left the substantive matters unresolved).

    Now, at the beginning of the paper, the authors define positivist dogma as the notion that judges must base their judgments on rules that are clear and general, and whose application is predictable. Consequently, under this dogma (at least according to the authors), rules have a determinate meaning and judges apply them in a mechanical way. They further claim that realist movement is an antithesis to positivist dogma, arguing that legal rules and principles are indeterminate, malleable, filled with implicit assumptions, and open to interpretation. According to the authors, there is a middle ground between the above two extremes and they want to demonstrate how moral considerations deeply influence judges' legal decision making in cases where legal basis is thin or absent.

    Based on the above opening statement, I can understand why there is a lack of coherence in the paper's analysis. This is probably due to the confusion made at the beginning of the paper. Let's start with the distinction between positivist and realist dogmas mentioned above.What are the authors actually referring to? If they talk about legal positivism, the above description is clearly mistaken. Legal positivism is a theory of law, not a theory of how to interpret the provisions of law. And while there are numerous versions of legal positivism (most popularly, hard versus soft legal positivism), all legal positivist adhere to two theses.

    First is the Social Fact Thesis, namely, what counts as law in any particular society is fundamentally determined by social facts. In other words, law is essentially a human posit. Second is the Separability Thesis, namely, what the law is and what the law ought to be are separate questions. You can know and tell what the law is regardless of whether you agree or disagree with the content of such law. In this case, there is no necessary connection between law and morality (meaning, for a law to be valid, such law does not have to be morally good, though of course, one might always try to judge the content of the law from morality perspective). As you can see from both theses, none is related to the definition made by the authors. I assume, they are actually referring to one form of legal formalism that believes that law has its own internal logic where cases can be decided as if one is solving a mathematical puzzle (ala Christopher Columbus Langdell, the first dean of Harvard Law School).

    Meanwhile, the authors definition of realist seems to focus on a single aspect of legal realism, that is, rule skepticism. It is not clear though whether the authors refer to conceptual rule skepticism (where law is conceptually indeterminate and therefore there is no specific meaning of law other than what judges specifically decide, which would mean whatever decreed by judges is automatically the law itself, an absurd proposition), or empirical rule skepticism (where it is possible that there are determinate and indeterminate legal provisions, that there are various "legitimate" legal arguments, and that judges in practice might not rely exclusively on legal rules as the basis of their decisions, but also on other factors, including the facts of the relevant cases and even the judges own personality). Judging from the opening statement, I assume that the authors actually wish to demonstrate that the judges in their 4 cases conform to empirical rule skepticism, and as such, this is not a middle ground between two contending visions, it is already a part of the realist movement! 

    For readers that are not well accustomed with the movement, the main idea of legal realism, particularly the American version, covers the following ideas: (i) given the numbers of legitimate yet competing classes of legal reasons, it is not always possible to get a single unified answer for each legal question, and (ii) given the above problem, non-legal reasons could be a better predictor of judges decision compared to the legal rules themselves because the legal rules are merely used as a facade, post-hoc rationalization to support whatever the judges wish to decide given the available facts. As we can see from the above, legal realism is not a theory of law per se, rather, it is a theory of adjudication and it is an empirical one too.

    With that being clarified, if it is indeed the case that the authors intend to demonstrate samples of legal realism at work, a more comprehensive analysis should be given on each case discussed in the paper, particularly: (i) the relationship between applicable legal rules and the decision taken by each judge, (ii) the legitimate legal arguments applicable in each jurisdiction, and (iii) the precise characterization of legal argument, method of legal interpretations, and rules of court proceeding used in each case. At the moment, the paper does not clearly establish whether the judges were actually doing post-hoc rationalization. Nor is it clear whether their own morality played a significant role in each of these cases. I only see conjectures here and there, and that is the biggest problem of this paper.

    On Facts

    Of course, general comments would not be sufficient if we want to seriously analyze an academic paper, so let us delve further by discussing the paper's analytical part, starting from the Fact sections. As a lawyer, the first red flag that I immediately recognize is the authors' claim that some of the jurisdictions discussed in the paper adopt an inquisitorial system based on the description of facts contained in the court decisions. This is a dangerous move and is prone to mistakes. To have a complete understanding of the criminal court procedures of a jurisdiction, one would normally refer to the relevant code of laws regulating such criminal procedures. If such procedures do not exist (which would be rare), one must also state that clearly in the paper. 

    It is difficult for me to believe that a country, especially at this modern period, fails to set out any rules on court proceeding (be it for civil, criminal, religious, administrative, or constitutional proceedings). It is also question-begging for courts of the first instance (especially for criminal proceeding) to exclusively rely on reports and written documents as they are trial courts and therefore must include cross examinations to find and test the consistency of substantive facts (this is different from appeal courts that usually only focus on resolving the legal discrepancies and would rely on the facts as recorded at the trial court level). 

    One should recognize that there are multiple ways of describing facts in a court decision, which will also depend on the relevant regulations and court practice of each jurisdiction. As an example, Indonesian courts are not famous for making any summary of facts in their decision, they simply copy and paste the claims and responses from the plaintiffs and defendants, respectively (for civil proceeding) or the criminal charges and defenses from the prosecutors and the criminal suspects, respectively (for criminal proceeding). A person who has no clue on Indonesian law on criminal proceeding might conclude that there is no fact checking by the trial court if they simply refer to the court decision, but of course, this is an absolutely wrong conclusion.

    Of course, it is possible that the authors are not mistaken in describing the nature of court proceedings in the jurisdictions discussed within the paper. But to do so, further references and clarification are necessary. Without such clarification, it is hard to assess the accuracy of their analysis, which will also affect our confidence on the overall analysis throughout the paper because if you can't describe the facts properly, how can we expect you to provide the right analysis? As an example, I am not convinced with the authors analysis that from a practical point of view, there is a tendency for judges to base their version of facts from the narratives provided by the public institutions that have conducted the investigation, or that it is possible for facts to be reduced simply to police complaint and that judges are not interested to know more about the case by mere reference to the nature of the judges'  decision (namely, the judge did not discuss the facts thoroughly because they already have their ruling in their own mind). 

    As I mentioned above, this is not something that can be easily inferred from the summary of facts mentioned in the decision. Furthermore, to make such a huge claim of causation, the authors should first clarify whether there are any existing procedural rules in such jurisdiction that must be followed by the relevant judges in accepting and dismissing the facts of the case. And even if those rules do not exist, we simply need more evidence before we can convincingly say that the judges "manipulate" the facts to conform with the end result that they desire. 

    On Rules

    Moving on to the Rules section, the authors use multiple terms and concepts without coherence, resulting in a muddled explanation on the role of rules for judges' decision making. My first question is, what are the authors trying to describe in this section? That law enforcement always requires interpretation? That there are "soft" cases and "hard" cases, and the cases presented in this paper resemble one of the above types? Or that judges are just playing with the rules to reach whatever they want, that they are being insincere? I find this as a mystery because the authors do not consistently provide their comments to each case. 

    If we take at face value the case in Indonesia (where the authors do not give any specific analysis) as described in the paper (namely, the judges punished the suspects for violating anti-pornography law because there are no explicit criminal rules on homosexuality acts), one might infer that it is not a hard case, the rules are pretty straightforward. In fact, it is precisely because it is straightforward that the Indonesian judges could simply refer to the anti-pornography law. What is the problem with that from legal perspective and in what way can we conclude that the judges were being insincere? 

    The authors further claim that some judges in Senegal and Lebanon adopted a legalistic attitude based on the fact that they took for granted the existing provisions in their criminal codes and applied those terms ("act against nature" and "carnal conjunction against nature", respectively) without much thought, claiming that those terms were clear and can be imposed to homosexual acts. In this case, the authors should clarify what they mean by being legalistic. Are they referring to the judges tendency of exclusively relying on the provisions of codes/regulations for rendering their decision (basically a discourse on what constitutes valid legal sources and reasoning in a jurisdiction) or the judges interpretive approach in reading ambiguous terms given that "act against nature" could have multiple meanings (basically a discourse on the proper way of reading and interpreting the law in a jurisdiction).

    I am guessing that the authors were talking about the latter because they claim that the judge at the lower court of Lebanon was also using a legalistic approach to reach a different conclusion where the judge interpreted one provision of Article 183 of the Lebanon Criminal Code (namely, "an act undertaken in exercise of a right without abuse shall not be regarded as an offense") as the basis of rejecting the idea that gay men should be penalized. I am not going to discuss the substance of the case in details because that is not the focus of this article. But suffice to say that the authors fail to properly assign the correct term, because there are no such thing as legalistic method of interpretation. 

    As I mentioned above, legalistic approach is often associated with how legal officials determine the proper and valid sources of law as the basis of making their decisions. In a way, this is the subject of legal positivism where the discussion on valid legal sources would fall under the theme of "rules of recognition" (as famously known in Hartian's legal positivism), namely rules adopted by legal officials to know, create, modify and delete the primary substantive rules. Since rules of recognition are basically meta rules, to avoid infinite regress, legal positivism claims that their existence is a matter of empirical social facts about what officials in a legal system do. Readers who are interested to learn more about rules of recognition should refer to H.L.A Hart's The Concept of Law for basic reading. For those who would like to delve into more advanced topics, I recommend them to read Reading HLA Hart's The Concept of Law.

    Clearly the cases in Senegal and Lebanon did not reflect a problem of finding the proper legal source. Indeed, it is absolutely possible for judges to refer to the same source of law and end up with completely different conclusions. So, is this an issue of legal interpretation? It could be, though the authors were not clear on the actual problem that they wish to demonstrate. Perhaps they were claiming that the judges in Lebanon and Senegal took a literal approach in reading the provisions and that, in itself, is problematic? 

    If yes, that would be an interesting claim because on a plain language reading, the term "against natural act" is clearly an ambiguous one given the multiple semantic meanings associated with such term. It would be more helpful if the authors do further research and inform us whether there are any other cases in Lebanon and Senegal that discuss the meaning of such term. This would allow us to properly analyze the method of interpretation used by the judges in the cases discussed in this paper. 

    There is a possibility that the judges in those cases were using Textualism where they referred to the contexts of the relevant texts within the criminal codes and their usage as understood by ordinary speakers within the community (this is the standard definition of Textualism, at least in the United States). Textualist judges often refer to dictionaries and various corpus linguistics to find the meaning of a legal term. It can also be argued that the Lebanon judges (at least at the appeal level) adhered to Purposivism from their reference to the necessity of referring to the goal pursued by the legal text or even Pragmatism as they also talked about carrying out legal interpretation in a manner that conforms to "social evolution". While I can say that the judges analysis in Lebanon and Senegal cases were quite sloppy, I would be careful before making a claim that they were using the Plain Meaning approach or even worse, a confused term like "legalistic approach".

    Similar to the problem of people concluding different things from a single legal source, using a method of legal interpretation does not guarantee having similar results (so I am not surprised that the Lebanon judges could reach different conclusion even though they probably shared the Textualism approach). The materials available on this particular issue are overwhelming and I can't possibly discuss each of them in this article. However, readers that would like to have a glance on contending theories of legal interpretation can refer to my old paper here (I discussed the Plain Meaning, Purposivism, Textualism, and Pragmatism theories of interpretation in that paper). 

    To decide whether a theory of legal interpretation is valid in a jurisdiction, one must check each jurisdiction closely because it might adopt different rules. In Indonesia, for example, the Indonesian Civil Code regulates the valid method of interpretation for reading a contract (including the hierarchy of those interpretive rules). In other jurisdictions, there might be rules on how judges must read a legal provision or other specific limits against their discretion (I notice that the judges in Lebanon claimed in their ruling that judges must adhere to two types of interpretive method, though it is not clear whether this is based on specific regulation and/or the court's social practice, or is simply made up by the judges!). All of these things should be considered by the authors if they want to make a proper comparison among jurisdictions so that they can formulate the issue in a more precise way. After all, if we claim that there is a particular issue, we should be able to identify the context where such issue arises.

    Finally, in the Rule section, the authors criticize the Egypt judges, claiming that there is a paradox because they extrapolated a rule criminalizing debauchery to be understood as homosexuality by referring to Egypt's Court of Cassation precedent even though there was no provision explicitly condemning homosexuality. Again, I cannot understand what is the real problem here. A problem of mistaken legal interpretation? A problem of reference to invalid legal sources? Why is this a paradox? Semantically speaking, the term used in the Egypt's law (debauchery) is equally ambiguous with the term used in Senegal and Lebanon. All of them could have multiple meanings if we simply refer to the semantic meaning of each term. 

    Moreover, are the authors criticizing the reference to the Court of Cassation's precedent? On what ground? Is this something that is prohibited under Egypt's law so that it can be concluded that the judges in this case were playing by the rules, finding rules out of nowhere to support their case even though they were not supposed to make such reference to other court's precedent? Without this context, it's hard to conclude that there is an issue, let alone a paradox. 

    On Master-Narratives and How To Do Things with Rules

    The authors opened the next section of the paper by stating: "Albeit in a very formal way, judges present, and feel themselves constrained by, the necessity to base their judgments on rules, which both constrain their discretionary power and provide the opportunity for flexible reasoning. With rules, they produce and reproduce narratives as to how to understand and apply the law. This is the ordinary working of law." My immediate question is: is this a normative stance or empirical one? More importantly, what is the basis for making any of those stances? What is the hard evidence for such grandiose claim? Or is this merely a conjecture?

    Consider the authors claim on the Egypt's judges that they basically selected the legislation that adequately fits the "moral though not formal condemnation of homosexuality" despite the absence of any directly applicable rule. How do they know this? Can they read the judges' mind? If we read the court's decision, the Egypt's judges simply referred to the precedent made in the Court of Cassation as the basis for rendering their decision and since the precedent did interpret the term debauchery to cover gay prostitution, they clearly had a legal basis to claim that debauchery means in that particular way. As such, from legal perspective, the authors cannot claim that there are no directly applicable rule unless they can demonstrate that under Egypt law, reference to prior court precedents is not considered as a valid legal source or that, as the authors claim, the term "debauchery" should only target passive homosexual relationships (to which no clear explanation or citation of legal ground is given for such claim). This is why it is incredibly important to understand theory of legal sources, theory of legal interpretation, and how the legal system works in the relevant jurisdiction.

    Moreover, I fail to differentiate the authors' analysis on Indonesian court judgment from mere conspiracy theory when they claim that the Indonesian judges essentially used the anti-pornography law (as the only available regulation) to establish their moral commitment of showing that homosexuality is wrong. Again, how can you tell that from reading the court's decision? Under Indonesian criminal law, as long as it can be proven beyond reasonable doubt that all elements of a criminal act are satisfied by a criminal suspect, such criminal suspect will be penalized with the penalty corresponding to such criminal act. Moral judgments do not matter in the equation. And even if it matters, it was not reflected in the decision. At this stage, I am not sure that any legal scholars (including empirical legal scholars) would ever take the master-narrative explanation seriously because it lacks any evidence to be used as a tool of analysis. Sure, it is an interesting narrative, but it fits better for story-telling rather than proper legal or social science discourse.

    As for the Senegalese case, there was no clear basis for the authors to claim that the judges have questionably transformed a confession regarding sexual orientation into evidence of the crime of committing acts against nature because (according to the authors) this type of crime can only be established if participants are caught red-handed. Even worse, instead of citing the legal basis for this claim, their footnote refers to explanation in Lebanon and this is problematic in so many levels. 

    First, it is entirely possible that two jurisdictions can adopt a completely different approach in setting criminal proceeding rules and defining criminal acts. Second, to claim that the judges in Senegal have done a questionable act, one must actually demonstrate that: (i) Senegal law states that only those caught-red handed can be prosecuted for homosexuality acts, and (ii) Senegal law does not accept confession as a replacement for the evidence of being caught red-handed. This is also crucial to determine whether the Senegal judges were still playing within the boundary of the applicable rules or whether they were abusing their power. There is a huge difference between an insincere judge and an abusive judge, and the authors must be precise in using this term so that they can provide a coherent analysis for their readers. 

    Finally, I find the repetition of the master-narrative analysis throughout the rest of the section does not provide us with any clarity on the true aim of the authors and how this will help us in doing legal or social science analysis. Take their analysis on how master-narrative affected the way that judges were thinking in Lebanon and Senegal. Frankly speaking, I can't see the relationship because the explanations are too jumbled. Borrowing the term from the late Justice Antonin Scalia from the US Supreme Court, claiming that judges in Lebanon took a different approach of interpretation as a way to reverse the master-narrative via "transformative" process is a perfect example of legal argle-bargle. Simply put, how do you know that? It seems that as if the master-narrative approach can be used for justifying anything that the authors want to justify while excluding other potential explanation and the necessary background to reach the conclusion made by the authors. 

    Despite my own critics in this article, I am sympathetic with the authors and I assume that by the end of the day, their ultimate claim is that judges are ordinary human beings with their own moral prejudice and that such moral prejudice may affect how they decide the cases. This is not a controversial claim. In fact, most legal realists think like that and perhaps, that is indeed the reality in practice. Call it the "common sense theory of legal adjudication". 

    The main problem is, instead of providing sufficient evidence and background, the authors use a narrative that simply cannot be falsified; a theory that can explain everything is often not a real theory. As such, for further research purposes, and because I assume that the authors are interested with a multi-disciplinary approach for legal discourse, I would suggest them to look at various literature made by political scientist, economist and lawyers on: (i) judicial behaviors and the statistical techniques to predict how judges will make their decisions based on their political association, preference, or other factors, and (ii) the role of courts decision in affecting social outcomes, whether there is any significant impact or whether it is an illusion. Two good books to start are: "The Behavior of Federal Judges" and "The Hollow Hope - Can Courts Bring About Social Change?".

    To close this article, the 4 cases discussed in this paper may serve as an introductory chapter to the varieties of interpretive theories and forms of legal sources among different jurisdictions. But it is not enough to support the empirical claim on how judges behave in practice. Such claim would require a bigger data set and a thorough understanding of how the legal system actually works in each jurisdiction. Only then can we get a better result. The road is still far ahead, but then again, that is why law is such a fascinating subject.  


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