There are many differences between law schools in Bangladesh and those seen in Hollywood movies. One thing they both have in common is a strategy to shape students' legal minds through the study and analysis of case law. A proper legal education in a country that follows the common law tradition requires reading hundreds, if not thousands, of judicial opinions written by appellate court judges while deciding cases. When discussing case law with students, law teachers focus not just on the conclusion of the case, but on the reasoning behind the conclusion as articulated by the judge. However, there are cases in which the reasons presented in case law do not convince readers. Because lawyers, judges, and academics are exposed to the habit of reading judgments, they become accustomed to reading unconvincing judgments. But law students who are taught about the binding nature of Supreme Court decisions during their first week of law school have a hard time understanding the court's potential for error. I often see smart law students struggling to understand how to deal with binding judgments that fail to convince their readers. It doesn't help that legal scholars who write critical scholarship on judicial opinions rarely mention the consequences of the unpersuasiveness of well-read decisions. This short essay attempts to scratch the surface of the consequences of unconvincing judicial opinions.
If a judicial decision fails to convince the reader, it directly affects the legitimacy of the jurisdiction. Needless to say, one or two unconvincing judicial opinions rarely undermine the legitimacy of the judiciary. However, if the Supreme Court regularly writes unconvincing opinions, it could affect public trust in the court.
The previous paragraph raises the question of why judicial decisions need to be persuasive. In its early days, common law courts rendered decisions orally and did not document judicial opinions. The practice of formally drafting judicial opinions is only a few centuries old. Courts play an interesting role in modern democracies. In a democratic system, members of parliament are elected by the people they govern. Their decisions gain legitimacy directly from the people's votes. The decisions of those who enforce these laws (or at least the final decision makers) are also legitimized by a vote of the people. Both are accountable to the people, as the people have the right to protest their decisions and not elect them to another term. However, judges who have the power to overturn legislative or executive decisions are not appointed by the people. People cannot challenge judicial decisions without risking being charged with contempt. Therefore, courts have an obligation to explain to the public when making decisions. Paul W. Kahn writes: “We believe that Congress should have authority when its members are elected through regular, free and fair elections. I am convinced that judges should also have authority when doing so, and not exercise arbitrary power.'' (Litigation: The Art of Judicial Opinion, 2016)
The exercise of judicial power is considered lawful because of the judicial duty to decide cases in a principled, rational and intellectually sound manner. Courts make their reasoning public by formulating judicial opinions in order to maintain their legitimacy. As Kahn rightly points out, judgment is different from opinion. A judgment is a declaration of the outcome of a dispute. Judicial opinions are companions to judgments. The judicial opinion assures the public that this case was not decided arbitrarily. A judicial opinion at least he plays two important roles. First, it is likely to be addressed to a losing litigant and trying to explain why the case was decided against her interests. Second, it is thought to communicate to future judges and litigants why a decision was made in favor of a particular argument for future rhetorical use. Of course, this assumes that the opinion is persuasive.
Therefore, if a judicial decision fails to convince the reader, it directly affects the legitimacy of the jurisdiction. Needless to say, one or two unconvincing judicial opinions rarely undermine the legitimacy of the judiciary. However, if the Supreme Court regularly writes unconvincing opinions, it could affect public trust in the court. “The courts, as institutions, must earn our trust,” Khan wrote. If a court fails to convince the public that it has decided the dispute wisely, it fails the very criteria that confer legitimacy.
An unpersuasive judicial opinion may not set a precedent. As Frederick Schauer rightly points out, there are two types of precedent: vertical and horizontal. (Thinking Like a Lawyer, 2009) Precedent set by a higher court against a lower court is called vertical precedent. Vertical precedents bind lower courts. If a case is filed in a court of the same jurisdiction, it is a horizontal case. Although the doctrine of stare decisis obligates courts to follow horizontal precedents, courts also have the power to challenge horizontal precedents for good reason. Therefore, if a judicial opinion fails to persuade future judges, the opinion may not become precedential because future courts may contradict its reasoning. For example, in the famous (or infamous, depending on where you are from) Dr. Bonham v. Physician, Edward Koch held that common law courts have the power to determine the validity of Parliamentary laws. However, he was unable to persuade British judges, and ultimately the case failed to establish common law status in England.
To commemorate the 50th anniversary of the founding of the Supreme Court of India, eminent jurists of the time published a book titled 'The Supreme, but Not Infallible'. The title of this book is very apt to describe all the Supreme Courts. We must remember that courts do little more than make mistakes. To substantiate this claim, it may be sufficient to cite examples such as the infamous cases of Plessy v. Ferguson, Dred Scott v. Sanford, and Halimah Khatun v. Bangladesh. Therefore, it is necessary to closely examine the persuasiveness of judicial opinions. If it fails to persuade readers, it may not survive the test of time and may fail to foster public trust in the judiciary.
The author teaches law at North South University.
