Portraying the Judge in the 21st Century: A Matter of Reflective Equilibrium between Theory and Practice

The turn of the century is marked by increasing tensions in establishing the standards of judicial decision-making, born from a divorce between legal theory and judicial empirical research. On one hand, jurisprudential theories with a descriptive component claim not only to establish what the judge should do but also what he actually does in court. This claim is made without appeal to empirical evidence. On the other hand, empirical judicial studies also claim to depict what a judge does, without using the conceptual framework offered by jurisprudential theories. The resulting images from the two endeavors are not only uninformed by each other, but they are contradictory. This outcome discredits both jurisprudential claims of describing the reality correctly, and judicial studies claims of providing a comprehensive and unbiased account.I aim to argue that an accurate portrait of the judge in the 21st century can be achieved only through a process of reflective equilibrium which gives equal importance to both traditional jurisprudence and empirical study of the judiciary. The paper will not only confront jurisprudential literature with empirical studies, but will also be informed from the latest guidelines on judicial appointment and training in the UK and other jurisdictions, guidelines that stand witness to the actual compatibility between the two sides.If it is true that jurisprudence and judicial studies can collaborate into shaping a coherent and comprehensive portrait of the judge, there are three implications of great importance. Firstly, the whole theoretical debate on whether jurisprudence can actually provide a “descriptive sociology” of legal phenomena could find its resolve (as wished by legal positivists). Secondly, jurisprudence itself will gain more legitimacy and visibility as provider of the conceptual and methodological devices in analyzing legal phenomena (as wished by legal naturalists). Finally, judicial practice will gain clarity and efficiency by working with a coherent image of what judges are doing.