The Umpire as a Jurist; a jurisprudential analogy

This article is the third article in the Role of a Judge series. Please click here to read the first and the second.     

“Writers of the nineteenth and twentieth centuries had already come to the unremarkable conclusion that judges were human beings, and as such were subject to human prejudices”

— Charles Gardner Geyh

THE PRINCIPLE OF JUDICIAL IMPARTIALITY is a foundational pillar of any legitimate legal system. However, it is widely accepted that the pursuit of “absolute impartiality” is a chimera, an ideal that is perpetually sought but never fully attained. 

As discussed in a previous article in this series – ‘Role of a Judge: When to recuse?’ – the most recognised threats to impartiality are bias and prejudice; both of which can subvert the adjudicative process. Partiality manifests in overt forms, such as political or financial interests, or in more subtle forms, such as cognitive bias or judicial nonchalance. 

Alongside the above-listed influences, the very philosophical commitments of a judge—their school of jurisprudential thought—can structurally shape their reasoning in ways that lead to divergent, often partial, outcomes. In analysing another hurdle to impartial adjudication, this blog post examines the inherent tensions within legal theory. 

The umpires tale 

There is an old tale about three baseball umpires who were asked how they rule on a ball: the first said, “I call it like I see it”, the second, “I call it like it is”, and the third, “It ain’t nothin’ till I call it.” 

This anecdote serves as a useful heuristic for examining the practical application of competing jurisprudential theories, emphasising the difference yet correctness of each view. The umpire, analogous to the judge, is expected to function as an independent and impartial third party. However, as the umpires’ divergent statements illustrate, the very nature of what constitutes an impartial and correct ruling is itself subject to his* own philosophies and predilections (albeit at times subconsciously so). 

The three views espoused above represent the diverging approach of legal theorists who ascribe to the schools of natural law, legal positivism, and legal realism.