Legal Judgment as Self‐Mastery

• Published date: 01 June 2023
• Author: Pavlos Eleftheriadis
• Date: 01 June 2023
• DOI: http://doi.org/10.1111/raju.12378

Ratio Juris. Vol. 36 No. 2 June (113–135)

Legal Judgment as Self- Mastery

PAVLOS ELEFTHERIADIS*

Abstract. Many legal theorists see legal judgment as a largely professional or technical task.

This is not how law sees itself. When looked at from the perspective of the engaged judge, law

requires from us that we arrive at a certain internal governance of our thoughts and emotions.

Legal scholarship and legal procedure tell us that law creates true reasons that override other,

personal, reasons, even those of the utmost importance to us. A philosophical understanding of

law requires a distinct argument that explains how such overriding reasons can be associated

with the law and how there can be a personal duty to adapt our reasoning when we make au-

thoritative legal judgments in order to change the lives of others. The philosophy of law needs

to explain how legal judgment can be a form of self- mastery.

1. Introduction

At the beginning of the European legal tradition the great scholar Ulpian celebrated

lawyers as “artists of justice.” The Digest reports him as saying that lawyers aim to

pursue justice and promote virtue: “Of that art we [jurists] are deservedly called the

priests. For we cultivate the virtue of justice and claim awareness of what is good and

fair, discriminating between fair and unfair, distinguishing lawful from unlawful,

aiming to make men good.”1 This exalted view of lawyers has not survived in mod-

ern jurisprudence.

The leading legal philosopher H. L. A. Hart(1982, 264) dismissed Ulpian’s senti-

ments by saying that the view that legal obligation may be a species of moral obliga-

tion is an “extreme” view. He went on to say that whenever the law “is clearly settled,”

then “judges, in speaking of the subject’s legal duty, may mean to speak in a techni-

cally confined way” (ibid., 266). So a judge’s motive may have nothing to do “with the

belief in the moral legitimacy of the authority whose enactments they identify and

apply as law” (ibid., 265). Hart’s legal philosophy, at least as set out in The Concept of

1 Dig. 1.1.1 (Ulpian, Inst. 1), trans. Watson1998, vol. 1, p. 1. For discussions of this passage see

Honoré2002, 77– 9; Jolowicz1963, 100– 5; and Zuckert1989.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial

and no modifications or adaptations are made.

* Professor of Public Law and Fellow of Mansfield College, University of Oxford. Earlier ver-

sions of this paper were presented at the conference Theorizing Constitutional Duties at Ono

Academic College, Israel, in October 2021 and at the Faculty Seminar at the Faculty of Law,

University of Oxford, in 2023. I am very grateful to all participants for comments and discussion

and in particular to Nick Barber, Timothy Endicott, Robert Stevens, and Kristin van Zwieten.

© 2023 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Pavlos Eleftheriadis

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Ratio Juris, Vol. 36, No. 2© 2023 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Law (Hart2012), appears to be the opposite of Ulpian’s in every respect.2 Hart’s main

argument is that law is some kind of social fact which emerges from the exercise of

power, not from a sense of justice and fairness. Many contemporary scholars of juris-

prudence agree with Hart and take law to be a mainly professional task. A judge is

often presented as a bureaucrat exclaiming, as John Gardner(2012, 128) once had a

hypothetical judge say: “That’s how they pay me to talk. I am only doing my job.”

Nevertheless, something of Ulpian’s attitude survives in the veneration we show

to the judiciary and in the care we take to teach law as a serious scholarly discipline.

It also survives in interpretivism, the school of legal philosophy that has challenged

legal positivism by seeing law as a moral idea. Interpretivism considers adjudication

to be the central aim of the law and takes lawyers to be exploring “principles that

provide the best moral justifications for those enacted rules” (Dworkin2011, 402).3 I

believe interpretivism is right to focus on the practice of judging as an essential com-

ponent of the idea of law. Yet one needs to ask the further question of why adjudica-

tion has to take the shape it does. In my view, the philosophy of law must return to

Ulpian’s ambitious view, which holds judging to be a matter of practical deliberation,

inviting a rigorous consideration of reasons as they apply to the self. Social institu-

tions raise questions of responsibility at two different moments, first when they are

created (by individual as well as by joint action) and, second, when they are acted

upon. If the first type of responsibility arises for legislators and constitution makers,

the second one arises for all citizens, and most of all for legal officials. When we act

under the law, we still have a responsibility to other persons to act well. And when a

political society succeeds in setting up legitimate legal institutions, it then necessarily

requires us to arrive at a certain internal governance of our thoughts and emotions.

These ideas may appear very surprising to experienced legal theorists. They are

radical departures from the positivist orthodoxy of contemporary jurisprudence.

They contradict almost everything Hart, Kelsen, and their followers wrote about

the nature of law. Yet, as I will show below, these ideas are also ordinary assump-

tions made by practitioners in the daily practice of the law. Starting from practice, we

may be able to offer a first sketch of an ethical theory of legal judgment as a form of

self- mastery.

2. Practice in Court

Ulpian’s veneration for lawyers is easy to understand. Judges are important. They

resolve disputes that litigants bring to a court. Civil trials ask one question: Should

the claimant be allocated the remedy he or she requests?4 The parties aim to persuade

the judge that their claim is meritorious. Legal rights are reasons that connect the

choice of one person with the actions of another by way of some normative

2 For doubts about this interpretation of Hart see the subtle arguments made in Dyzenhaus2022.

3 The main statement of interpretivism is in Dworkin1986. See generally Stavropoulos2021.

Other arguments about law as a moral idea have been offered by many other scholars, such as

Alexy (2002), Eleftheriadis (2008), Rodriguez- Blanco (2014), Sargentich (2018), and

Simmonds(2007).

4 Criminal trials ask a slightly different question: Is the defendant guilty according to the pros-

ecution’s case? I leave outside the scope of the present discussion any specific matters that arise

under the criminal law.