Fact scepticism

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The view that when delivering the reasons for a judgement, the adjudicator presents the facts in a way which give credence to his decision. See also Rule scepticism, Legal realism.

Judge Jerome N. Frank, along with Karl Llewellyn, is considered as the founding father of jurisprudential legal realism. In his famous book ‘Law and the Modern Mind’, Jerome Frank emphasised the futility of investing too much time and energy in appellate courts, rather than trial courts where a case is studied on the basis of facts and analysed threadbare.

For convenience, Frank categorised the realists into two groups – Rule Sceptics (Skeptics) and Fact Sceptics (Skeptics). Accordingly, the Rule Sceptics categorically rejected any scope of achieving uniformity in law through legal rules. Instead, they relied on social science to deliver uniformity in rules. In short, the Rule Sceptics were of the opinion that judges are governed by several ‘social forces’, like their professional background, social exposure, et al, while delivering judgments. Basically, ‘social forces’ and not ‘rules’ are the deciding factor in a judge’s professional conduct.

Fact Sceptics (including Jerome Frank), on the other hand, rejected the possibility of achieving rule certainty. He was of the firm opinion that the facts are not established in toto even by the trial judge. Further, he emphasized that even if we presume that the rules are clear, the decisions of the trial court is seldom based on rules. Rather, it depends on factors, like conscious and sub-conscious attitudes, beliefs and prejudices, which are peculiar to the parties, witnesses, and facts of each case. These factors imply that prediction of the decision in a case is virtually impossible, as the case is decided on the “idiosyncratic facts about the psychology or personality of the individual judge.”

Therefore, Fact Scepticism refers to the idea of legal realism, which states that while elucidating the reasons for a judgment, the judge considers and presents the facts in a way, which gives credence to his decision, as opposed to presenting the facts as they are.

Frank underscored the twisting of facts in a trial not once, but twice. First, by the witnesses who report what they think are the facts, and then, by the judge or jury, who are mere witnesses of what goes on in the court room. The witness, howsoever independent he may be, perceives the data objectively, individually, and according to his personality, which is an outcome of his social, political, economic, and educational background. Thus, an inevitable influence of personal bias, experiences, sympathies, antipathies, or even the instantaneous state of well-being creeps in while arriving at the facts of each case. Frank was of the opinion that these factors cannot be excluded by applying any kind of psychological or sociological theories or procedural arrangements.

Frank concluded by stating: “[L]egal rights are then dependent on human guesses about the facts… The personality of the judge (or jury) is one of the most important factors in the decision of any ‘contested’ case.”

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