The grammar of bias: judicial impartiality in European legal systems

Breda, Vito (2017) The grammar of bias: judicial impartiality in European legal systems. International Journal for the Semiotics of Law, 30 (2). pp. 245-260. ISSN 0952-8059

Abstract

Abstract The concept of judicial objectivity is a cornerstone of modern legal systems. This article discusses the interplay between the lexical uses of the concept of judicial objectivity in cases that review the judicial impartiality of the court. The data for this project is retrieved from a large sample of over 800 decisions from Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain and the UK. The study was completed in 2014. Analysis of the data shows that in situations of alleged judicial bias, the concept of objectivity is referred to in order to justify a series of judicial activities such as the assessment of procedures adopted by an allegedly biased court or the existence of subjective interest in a case. In particular, the study provides a strong indication of what Legrand called ‘pre-judices’, which are the cultural aspects embedded in the process of the professional socialisation of each legal system.

Legrand’s ideas relied on deductive analysis but, from a social perspective, he had too many variables and not enough data. This study focuses on lexical reference – retrieved by using Langacker’s studies on grammar – to the concept of objectivity in legal cases in which there is an allegation of judicial bias. The results show substantial differences in how courts operating in different legal systems engage with objective and personal allegations of bias. An objective allegation of bias suggests that the judge has a direct interest in the issues on which s/he is called upon to decide. A personal allegation of bias suggests that a judge has a personal or professional connection with one or more of the parties. In the sample considered in this study, objective allegations of bias tend to support narratives that justify an analysis of evidence and the facts of the case. These variations in how legal systems deliver decisions strongly support Legrand’s ideas of pre-judices.

This article is divided into three parts, preceded by an introduction and followed by a conclusion. The introduction explains the project’s methodology. The second section provides a theoretical overview of the interplay between the concepts of objectivity and judicial bias. Sections three and four discuss specific cases of objective and subjective bias. The conclusion reflects on the project’s results.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Accepted version deposited in accordance with the copyright policy of the publisher.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 13 Feb 2017 00:06
Last Modified: 06 Mar 2018 23:54
Uncontrolled Keywords: Judicial Bias, Comparative law
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
18 Law and Legal Studies > 1801 Law > 180104 Civil Law and Procedure
22 Philosophy and Religious Studies > 2202 History and Philosophy of Specific Fields > 220204 History and Philosophy of Law and Justice
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940405 Law Reform
C Society > 94 Law, Politics and Community Services > 9499 Other Law, Politics and Community Services > 949999 Law, Politics and Community Services not elsewhere classified
E Expanding Knowledge > 97 Expanding Knowledge > 970118 Expanding Knowledge in Law and Legal Studies
Identification Number or DOI: 10.1007/s11196-016-9489-2
URI: http://eprints.usq.edu.au/id/eprint/29468

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