Judicial Legitimacy and the Disinterested Judge

Abstract

For an individual playing a social role to behave responsibly requires participation in a process that is perceived by society as having symbolic as well as operational significance. What our society calls law is the result of a process of judicial decisionmaking resolving individual controversies. The best of the opinions in which such decisions are embodied attain a precedential value transcending the facts of the specific disputes they resolve. Public acceptance of the legal profession, however, rests precisely on the ability of the professional to blur this possible distinction between the operational and symbolic function of a judicial opinion: to explicate, for the lay public, the mysteries of precedent as though what was involved was a rigorously logical set of propositions derived from a limited set of socially approved presuppositions. Thus, fundamental to this acceptance is the public's belief that when the lawyer argues the law, he is focusing on something other than his client's purposes. How such a belief is maintained in connection with a system in which lawyers perceive their duty as that of manipulating the law so as to maximize the client's satisfaction is the subject of this essay.