On deciding the case of the search of Jacob Zuma

Last July South Africa's Constitutional Court decided the question of the legality of a set of searches of Jacob Zuma -- now the country's President -- and others, searches directed at gathering evidence to convict Zuma of corruption. The Court upheld the searches by a 10-1 vote -- with both judgments (the majority and dissenting opinions) carefully and dispassionately reasoned. (Thint (Pty) Ltd and Others v. National Director of Public Prosecutions and Others, CCT 89/07, decided July 31, 2008.)

It is remarkable enough for a court to have to rule on issues affecting the potential criminal trial of someone in position to become President of the country. What made this case most remarkable, however, was that while the Court was deliberating, John Hlophe, a judge of the High Court (the trial court of general jurisdiction in South Africa) visited the chambers of two members of the Constitutional Court, allegedly -- that is, as alleged in a complaint filed by the justices of the Constitutional Court! -- in an effort to improperly influence the Court's decision. The justices filed a complaint with the Judicial Service Commission (JSC), the judicial disciplinary body in South Africa. The High Court judge filed his own complaint and also sued the justices in court. In short, a total mess.

In the midst of this the justices of the Constitutional Court had to finish deciding the search case itself. In the words of the majority judgment by Chief Justice Pius Langa (paragraph 6):

"All the members of the Court ... have considered their position in the light of the events mentioned above and their responsibilities as Judges of this Court. We are satisfied that the alleged acts that form the basis of the complaint to the JSC by Judges of this Court have had no effect or influence on the consideration by the Court of the issues in these cases and in the judgments given. It is recorded in the statement of complaint that there is no suggestion that any of the parties in these cases have had anything to do with the alleged conduct that forms the basis of the complaint by the Judges of the Court. The issues relating to the complaint have accordingly been kept strictly separate from the adjudication process in these cases. It is however important to emphasise that the cases have been considered and decided in the normal way, in accordance with the dictates of our Oath of Office and in terms of the Constitution and the law, without any fear, favour or prejudice."

I believe the justices were entirely correct in concluding that they could still judge the case before them fairly. To say this, however, is to say quite a lot about the role of emotion in judging. Recent arguments over "empathy," in connection with the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, might suggest that somehow judges are supposed to decide without emotions. That can't be. How could it be, when neurological investigations are telling us that values cannot be held and applied unless they are given mental valence by emotional foundation?

But once we agree that emotion has a role in judging, the question is, which emotions and how much of them? The members of the Constitutional Court surely felt many strong emotions as a result of the events that led them to file a complaint with the Judicial Service Commission. Those emotions can't have altogether dissipated, since the fracas over those events did not end (and is not over today, in June 2009). Even without this extraordinary feature, the case would have prompted emotion on its own, involving as it did the fate of a potential President, hence ultimately the well-being of the country itself.

When the members of the Constitutional Court concluded that they could fairly decide the search case, therefore, they were not saying that they were unemotional -- which would have been to say that they were inhuman. What they were saying was that their emotions were properly cabined.

What does it mean to "properly cabin" -- while still feeling -- one's emotions? This might not be such a hard question if the only emotions judges felt were "nice" ones -- profound attachment to constitutional values, for example. But the feelings people, including judges, have are more complex and ambivalent than that -- yet judges, with all their human complexity, must render fair decisions.

I don't think we yet have a clear pyschological account of what it means to be an emotional, yet fair, decisionmaker. (We did have an account of how to be a fair, but unemotional, judge -- that is, to adhere always and only to the law -- but that account collapses once we acknowledge that decisionmakers aren't unemotional, and also that the law judges are adhering to is to a substantial extent something they themselves must make as they decide the cases that come before them.)

Some part of what makes the "emotional, yet fair, decisionmaker" is probably which emotions he or she feels most strongly; the judge with a passion for fairness is much more likely to be fair than the judge with a passion for revenge. Some part of it is probably also how the judge judges himself or herself; the judge who recognizes his or her impulse towards revenge is much more likely to handle that feeling well than the judge who denies its existence while embodying it.

Beyond both of these, some part is, I think, a capacity for objective judgment. By "objective" judgment I don't mean judgment somehow from outside the bounds of one's society and its many predispositions and assumptions; none of us can get that far outside ourselves.

But some people are better at resolving conflicting claims than others are. Part of that is probably a distinctive emotional ability -- empathy, to return to that currently-controversial quality, an empathy that extends to every claimant, not just those (whoever they are) whose claims seem most in line with the judge's own inclinations. To be able to hear and understand is to go a long ways towards being able to consider and evaluate. This might be called the capacity to be open-minded.

But there is still the task of evaluation. It seems to me that objectivity in evalution, of the sort humans can achieve, is an ability to regulate one's own thinking. It's not easy to understand how this ability could exist, since it seems that the stream of consciousness (and unconsciousness) flows on, largely as it will. But we know that people say, and quite routinely, things like "I really don't want to do such-and-such, but I think it's the right thing to do." Those statements reflect that we are capable of sorting among our own thoughts and feelings, and concluding that some are entitled to greater weight than others. Objectivity in law, then, is the ability to guide one's own thoughts towards the issues posed by the law rather than those generated by other claims upon us.

South African law reflects a belief in this objectivity, a stronger belief than much current legal theory might embrace. Justice Ngcobo in his Thint dissent says, as the Court has said before, that "our Constitution embodies an objective, normative value system." (Paragraph 375) I think that judges can be open-minded and objective (in the sense I've described) even if the law itself is changing, over time, in ways that make judges (and citizens) the ongoing creators as well as recipients of its value system. But this takes us towards the question of the nature of law, and that small matter is a question for another post.