The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?
Drawing on emerging debates in moral theory, I call this problem the problem of “normative uncertainty.” It is often overlooked because the common answer is that the judge should just swallow her doubts and do what she thinks is right. But that obvious solution turns out to be wrong. Sometimes, she should not follow her preferred jurisprudence, but do what a different jurisprudence suggests instead.
Developing a full solution will be difficult, and I do not attempt one here. Instead, I sketch a solution based on the familiar example of expected utility and use it to illustrate why developing a solution to normative uncertainty is considerably more difficult than developing solutions to other kinds of uncertainty. By the end, I hope to have convinced you only that there is a problem and that it is hard. But even without a solution, just seeing the problem will change how you think about judging.
Cox, Courtney M.
"The Uncertain Judge,"
University of Chicago Law Review: Vol. 90:
3, Article 1.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol90/iss3/1