WHY PUBLISH JUDICIAL DECISIONS?
A Think Piece on Developing
An Informed Consensus Favoring,
And A Prototype System Demonstrating,
Internet-Mediated Access To, And Commentary On,
All Law — Including Key Judicial Decisions — In Armenia
Copyright © 2000 by Barnabas D. Johnson
WASHINGTON (AP), 6 June 2000: One-third of the Supreme Court [of the United States] appeared before an international audience [today] to promote the rule of law in other nations. One justice's suggestion: put court decisions on the Internet.
"I would like to see written opinions of high courts around the globe so that the world can see what you're doing," Justice Sandra Day O'Connor said at a World Bank-sponsored conference on legal and judicial development.
Justice Anthony M. Kennedy said it is important for judges on the new European Court of Human rights to "begin writing decisions which have the capacity and the power to inspire and to persuade."
General Proposition: It is increasingly clear that good economies require good governments, and that good governments require good constitutional systems — broadly defined — including good judicial systems.
After 12 years of immersion in legal and constitutional reform efforts in the Soviet Union and the former Soviet Union (FSU), Prof. Lowry Wyman and I have identified numerous challenges that most thoughtful observers agree must be tackled. Substantial progress on each is necessary but not sufficient to the "reform agenda" that clamors for action. Articulating this fact, however, invites the impression that one is taking a scatter-gun approach. If too many bullets are necessary, and none is sufficient, then — given limited resources — reform seems remote, at best.
The following question therefore naturally arises: If one were forced to identify one specific reform, or package of related reforms, what might that be?
Specific Proposition: The Rule of Law must be based on the Rule of Reason. Ordinarily, public officials, and especially judges, should give reasons for their decisions and actions — and these reasons should be available for public scrutiny.
It is especially essential that judicial decisions — and supporting reasons or "opinions" — be available, not only to the lawyers and judges involved in the appeals processes associated with a specific case, but also to all lawyers, judges, journalists, opinion leaders, and the general public. Such case reports should also be available to law students, of course; rather than learning "the law" in the abstract, they should be able to see it in action — see how real disputes were resolved by real judges who had to apply the law to specific situations and had to explain why this provision of law trumps that, why those proven facts are legally less relevant than these, etc. Such case reports should not merely be available in theory, they must be available in fact — ideally in a searchable data base available over the Internet. Not unrelated is the fact that my graduate law students report that they went through five years of undergraduate law studies without ever having a teacher refer to a specific dispute and how it was resolved by a court.
In the FSU, judges give few if any reasons for their decisions; their rulings are "formulaic" at best, often not hinting at the existence of a genuine dispute (indeed, one often wonders why the losing party went to court); and in any event all such case reports are essentially unavailable. In 1998 I sued to obtain case reports in aid of our teaching in the Department of Law of the American University of Armenia. I was told that only the Justice Ministry could decide this matter. So I took it up with Ministry officials. They were totally puzzled by, and ultimately unsympathetic to, my formal request. Why on earth would anyone want to read a judge's decision, especially as it was actually prepared by a secretary from notes?
Why should judges' decisions be reasoned, published, and easily accessible?
1. When few if any reasons support judicial findings and conclusions, and judges' decisions are unavailable for public or professional scrutiny, there is an almost inevitable increase in the likelihood that inept or corrupt reasons will prevail. Issue-illuminating decisions, and the sunlight of publicity, are the best antidotes for the poisons of judicial carelessness and corruption.
2. Conversely, when judges routinely provide their reasons, explaining why under the facts and law one party rather than the other is entitled to win, it becomes much harder for "extraneous facts and reasons" to trump. Threats against judicial integrity, whether emanating from government officials or private "musclemen" or anonymous thugs, are less likely to carry the day when judicial decisions are imbedded in the law, explained in terms of the law, and accessible for scrutiny not only by appellate judges but also by the entire judicial branch, the entire legal profession, law professors and students, and the general public. If the judge, under threat, allows victory to a party which according to the credible facts and applicable law should lose, the judge must nevertheless explain that decision; it is much harder to hide fake reasons under a facade of "judicial reasoning" that is implausible. Rotten decisions are hard to hide; they usually stink. A judicial system based on customs and institutions that support reason-giving, accountability, and professional peer review, can defend itself against threats to judicial independence, judicial integrity, judicial competence. Being required to give and publish reasons is the best protection a judge has against those who consider themselves above the law.
A judicial system based on "customs" and "institutions" imbedded in Party Dictat, governmental lawlessness, and official corruption, cannot withstand the light of day; Armenia must turn away from that system and embrace a new system. Armenia needs judges who can illuminate the law. Armenia needs a Judicial Branch that can flourish in the sunlight of public accountability. Such sunlight is the best disinfectant against political and other corruption. Under this new system, a judge will have the choice of taking a bribe and writing a decision that does not hold up under scrutiny — and thereby risking being caught and fired — or of not taking a bribe, and not giving in to corrupt political pressures, and instead contributing to the development of intellectually-sound and uncorrupted law in Armenia. Judging will thereby become an honorable profession, and good judges will receive the public recognition they deserve.
3. On a deeper and ultimately more crucial level, it is essential to understand that "good law" must evolve within, and be sustained by, a genuine — not fake — Ecology of Mind: logic (the rules of clear thought and expression); science (the sum and substance of how we gain reliable knowledge and understanding, as well as the fruits thereof); and to use a now-popular but little-understood concept cybernetics . The judicial function specifically, and constitutional democracy more generally, are vital components of the "cybernetics of civilization" — the self-correcting, self-governing, choice-making, and feedback-processing activities on which the Ecology of Mind relies. Now, it is often said (by those who know far too little about the subject, including several local "authorities" thereon), that Armenia and the FSU follow the "continental model" of judicial decision-making, etc., rather than the "common-law model" — and that this explains why judges do not "give reasons" and why judicial decisions are unavailable for public scrutiny and should thus remain. This is a huge subject . Suffice it to emphasize that one of the most important "constitutional values" within the emerging European Union is that judges, and administrative officials engaged in "judge-like" activities, must give reasons and — with obvious exceptions that prove the rule — must publish same. While French judicial decisions remain somewhat spare and unrevealing (a much-criticized feature that is now changing), German and Dutch judicial decisions are as discursive and "reasoning rich" as decisions in most advanced common-law countries. The challenge, therefore, in Armenia and the FSU, has been and must remain (to put it in simplest terms), to help build an informed consensus among key lawyers, judges, government officials, and opinion leaders, favoring the proposition that the time has come to begin moving, step by careful step, in the direction of reasoned decisions that are publicly available.
The Internet and related technologies make it technically easy to put all legislation and judicial decisions on the Internet, and then to provide "hotlinks" between them so that if (for example) Armenia's highest judicial authority — ordinarily, the Court of Cassation — has interpreted an article of the Armenian Civil Code, both the fact of interpretation and the text thereof can be immediately accessed. Likewise, if this court has wrestled with that article several times in rulings on specific cases over several years, and a law professor has thereafter written a critique discussing the legal issues relating thereto in light of how identical language in the Dutch Civil Code has been interpreted and applied by Dutch courts, it is technically easy to hotlink this critique to that Civil Code article and to each of the cases applying it.
Armenian legislation already exists in computer-mediated form. Armenian court decisions are typed up, and — starting with the Court of Cassation on, say, January 1, 2001— could instead be keyboarded into a computer. (Rumor has it they are close to doing so).
Whereas the technical impediments to building an Internet-mediated method of accessing and hotlinking legislation and cases are trivial, the cultural impediments — indeed, political impediments — are not trivial. However, demonstrating that those technical impediments can be overcome, and overcome relatively inexpensively, will be relevant to overcoming those cultural and political impediments.
Those cultural and political impediments reflect old Soviet thinking that is dysfunctional, indeed evil. Yet powerful vested interests cling to them, supporting the status quo. That must change. If Armenia is to have any worthwhile future, it must become a beacon in this region for law-based governance, including the intellectual and moral integrity of the Judicial Branch.
1. The words "government" and "cybernetics" are deeply linked. Both governmental and cybernetic systems, to function at all, require feedback. A government without feedback is a contradiction in terms. Legislative, executive, judicial, constitutional, and legal systems, as subsystems within a larger "body" of global self-governance, all require for their individual and meta-systemic Life the nourishment of multidimensional, interpenetrating feedback. Back
2. I have been preoccupied with this subject for 33 years. In 1983 I helped found, and for the next six years headed, a unique research and publishing endeavor, the Almanac of the Federal Judiciary — a two-volume loose leaf service that profiles and evaluates all federal judges in the United States. My most interesting activity, in addition to managing this project, consisted of reading and summarizing for publication the extensive writings of these judges regarding their favorite subject: the judicial function, both in America and abroad. Since leaving the Almanac in 1989, no issue has more preoccupied me than that of judicial reform in the former Soviet Union. That is the perspective from which I now write. Back
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