Lucy

Oxford Journal of Legal Studies, Vol. 25, No. 1 (2005), pp.
3–31
doi:10.1093/ojls/gqi002
The Possibility of Impartiality

WILLIAM LUCY*
‘[N]o one claims impartiality is invariably a bad thing’

M. Baron,‘Impartiality and Friendship’ (1991) 101 Ethics 836
‘It is the duty of the judge to be impartial;—therefore it is his duty to be partial’
J. Bentham, Rationale of Judicial Evidence, Works (1843), Vol. VI, p. 350
Abstract—This essay offers a general account of the idea of impartiality and

examines the senses in which adjudication is and is not impartial. Against those who
would derive an account of impartiality from more general moral or political theo-
ries, the essay shows that ordinary thought embodies a coherent and reasonably rich
conception of impartiality, some of the principal features of which are also in play in
adjudication. Against those who claim that impartiality in adjudication is impossible
or illusory, it is argued that there are some meaningful senses in which adjudication
is indeed impartial. The essay concludes that in the adjudicative context impartiality
might even be considered a virtue, albeit a limited one.
Accept, as Lon Fuller did, that law is a means of subjecting human conduct to
the governance of rules. Accept also, as Fuller did, that adjudication is a means
of resolving many disputes about the application and interpretation of those
rules.1 Plainly, these two apparently non-contentious claims say nothing about
what makes law and adjudication distinctive social forms. Neither do these two
claims say what, if anything, is valuable about law and adjudication nor what,
exactly, the nature of the relation is between them. Although law and adjudica-
tion are often linked, sometimes even regarded as one and the same, they are
conceivably distinct. It is neither impossible nor ridiculous to imagine a system
of law without a system of adjudication as we understand it, although a system of
adjudication without a system of law is harder to conceive.2
* Department of Law, Cardiff University. Thanks, in particular, to Oren Ben-Dor, Eleanor Curran, Andrew
Halpin, Gerry Johnstone, Richard Mullender, Massimo La Torre and the OJLS referee(s).
1
L. Fuller, The Morality of Law (New Haven: Yale UP, revised edn, 1969) at 46 and 96. On the links between
law and adjudication, see his ‘Forms and Limits of Adjudication’ (1978) 92 Harvard L R 353–409 at 372–9.
2
See Fuller, ‘Forms and Limits’, ibid. S. Roberts, Order and Dispute (Harmondsworth: Penguin 1979) at 53–79
and chs 9 and 10 provides a thoughtful and elegant statement of the various methods of dispute resolution found in
‘simple’ societies. R. Dworkin, Law’s Empire (Oxford: Hart Publishing 1998) at 11–15 and 400–01 correctly states
a common but questionable assumption of contemporary jurisprudence, namely, that law and adjudication are an
inseparable package.
 The Author 2005. Published by Oxford University Press. All rights reserved. For permissions,
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4 Oxford Journal of Legal Studies VOL. 25
One way in which law and adjudication could be said to be distinctive social
forms of subjecting human conduct to the governance of rules, and of resolving
disputes about the proper interpretation and application of those rules, is this:
they are better than other available forms at achieving those ends. Concentrating
henceforth only upon adjudication, an argument of this kind must show at least
two things. First, it must demonstrate the value of adjudication as a means of
resolving disputes about the interpretation and application of all or many of the
legal rules by which we live. Second, it must show that other social forms which
could resolve such disputes—voting, citizens juries, mediation, arbitration or
even flipping coins—either lack this value or have it in lesser degree than adjudi-
cation. Setting aside the possible value of these other means of resolving dis-
putes, in what might the value of adjudication consist?
There are at least three conceivable answers to this question. The value of adjudi-
cation as a means of dispute resolution could be said to reside in its rationality,
or in its legitimacy or in its possession of another alleged virtue, impartiality.
Each of these notions must be unpacked and all can be combined in a mutually
supportive package. Much orthodox contemporary legal philosophy, however, is
concerned only with developing versions of the first answer, while a good deal of
contemporary political philosophy deals with the problems inherent in most ver-
sions of the second answer. The kind of reasons that judges do and should give
for their decisions, and the duties, if any, judicial decisions and other sources of
law impose upon citizens, are staple topics on the contemporary orthodox juris-
prudential agenda.3 Impartiality, by contrast, is not; it receives almost no
sustained and independent attention from either orthodox or heretical jurists.4
This is obviously puzzling, since impartiality is simultaneously an important ele-
ment in many citizen’s and legal systems’ conception of the judicial role and
attacked as either incoherent or impossible.5 In these circumstances the notion
seems ripe for jurisprudential investigation.
3
By ‘orthodox’ I refer to jurists whose work shares a belief that law and adjudication are, or are near to becom-
ing, good means of both subjecting human conduct to the governance of rules and of resolving disputes about those
rules. Three classic orthodox Anglo-American contributions to the first topic are: N. MacCormick, Legal Reasoning
and Legal Theory (Oxford: Clarendon Press 1978); R. Dworkin, Taking Rights Seriously (London: Duckworth, 1978)
at chs 2–5 and his Law’s Empire, above, chs 2, 6 and 7. On the second topic, three contemporary classics are: J. Raz,
The Morality of Freedom (Oxford: Clarendon Press, 1986), part I; Law’s Empire, above, ch 6; and A. J. Simmonds,
Moral Principles and Political Obligations (Princeton: Princeton UP, 1979) chs III–VII.
4
‘Heretical’ jurists are those who think either that law and adjudication are undesirable means of regulating
human conduct tout court, or undesirable in their current form and in current social, cultural and economic condi-
tions. Some principal heretical monographs are: D. Cornell, The Philosophy of the Limit (London: Routledge,
Chapman and Hall, 1992); A. Hutchinson, Dwelling on the Threshold: Critical Essays on Modern Legal Thought
(Toronto: Carswell, 1988) and his It’s All in the Game (Durham, NC: Duke UP, 2000); M. Kelman, A Guide to
Critical Legal Studies (Cambridge, Mass.: Harvard UP, 1987); D. Kennedy, A Critique of Adjudication (Cambridge,
Mass.: Harvard UP, 1997) and R. Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard UP,
1986) and What Should Legal Analysis Become? (London: Verso, 1996). Impartiality is notable by its absence in
these heretical works: see, for example, Kennedy’s Critique; it features only fleetingly, and then only in a discussion
of value neutrality, in Kelman’s Guide. Orthodox jurists are equally sparing in their treatment: impartiality hardly
figures at all in Dworkin’s Law’s Empire, above, and appears briefly (at 17–18 and 234) in MacCormick’s Legal
Reasoning, above.
5
Two recent fairly dismissive treatments are: L. Mulcahy, ‘The Possibilities and Desirability of Mediator
Neutrality—Towards an Ethic of Partiality?’ (2001) 10 Social and Legal Studies 504–27 at 511–14; and E. Rackley,
SPRING 2005 The Possibility of Impartiality 5
The reluctance of many contemporary jurists to investigate impartiality may
be based on this assumption: the meaning and role of impartiality in both gen-
eral and juristic thought is simply the same as its meaning and role within much
recent moral and political philosophy. Here impartiality is sometimes regarded
as a requirement of the moral point of view or as being the basis of any acceptable
conception of justice for a pluralistic society.6 (In the latter context impartiality
is often taken to be synonymous with the idea of neutrality.) Moral and political
philosophers’ accounts of impartiality are, necessarily, abstract yet also narrow
in aim. They are formulated with a view to quite specific questions about, for
example, the ways in which a theory of justice might be justified to those with
incompatible comprehensive conceptions of the good, or of the stringency of
morality in the face of individuals’ particular commitments. While these analyses
will bear some similarity to impartiality as conceived within non-philosophical
and juridical thought, they are not the most obvious starting point for an analysis
of impartiality as understood in the latter contexts. This is especially obvious once
it is noted that in moral and political philosophy impartiality is sometimes hastily
converted into other notions, such as epistemological abstinence or scepticism
about the good. Without denying the validity of the inferences by which moral
and political philosophers arrive at such notions from the idea of impartiality—
inferences that might also ultimately have to be made by the jurist—these
notions are patently not to the forefront of our non-moral-cum-political philo-
sophical understanding of impartiality. Our ordinary understanding of impartiality
is unlikely to be conditioned by the concerns of particular theoretical accounts of
justice and morality; rather, it will be conditioned by the contexts in which it is
employed or, perhaps more accurately, constituted. That assumption governs all
that follows, since the account of impartiality offered is entirely derived from the
mundane, everyday contexts in which we use it; those contexts provide an intel-
ligible and useful account of impartiality free from the distractions of grander
philosophical projects.
This essay aims to explain and elucidate some of the ambivalence that shrouds
the idea of impartiality. The focus is narrow, though, since the specific question
that concerns us is this: can adjudication be an impartial means of resolving dis-
putes about the interpretation and application of legal rules?7 The answer to this
‘Representations of the (Woman) Judge: Hercules, the Little Mermaid and the Vain and Naked Emperor’ 22
(2002) Legal Studies 602–24. True to its hyperbolic tone, the latter essay claims impartiality is ‘either a lie or a failed
and discarded ideal’ (622). Equally dismissive, but this time of the idea of impartiality as articulated in some areas
of moral and political philosophy, is I.M. Young, Justice and the Politics of Difference (Princeton: Princeton UP,
1990) at 103: ‘[t]he idea of impartiality expresses an impossibility, a fiction’. Altogether more measured yet critical
is N. Lacey, Unspeakable Subjects (Oxford: Hart Publishing, 1998) at ch 7.
6
For an important and early statement (1798) see pp. 69–73 of W. Godwin’s Enquiry Concerning Political Justice
(Oxford: Clarendon Press, 1971), abridged and edited by K. Codell Carter. A key contemporary text on impartial-
ity in political philosophy is B. Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995); a good starting point
on impartiality in moral philosophy is the symposium in (1991) 101 Ethics 698–864. Both areas are ably dealt with
in S. Mendus, Impartiality in Moral and Political Philosophy (Oxford: Clarendon Press, 2002).
7
Nothing should be read into my use of ‘rules’ here; it is but a shorthand way of referring to legal rules and non-
rule standards. I am taking no position on the constituents of a legal system or how they are best characterized.
question falls into three unequal parts. The first elucidates impartiality in general
terms. It gives an account of impartiality that is rooted in the supposedly mun-
dane contexts and terrain of everyday thought and ordinary language. The high
peaks of moral and political philosophy are only occasionally glimpsed from this
lowly plateau. The second part examines whether impartiality as generally
understood is possible within adjudication and what, if any, differences exist
between our general and our juristic understanding of the notion. The third part
considers an important objection to impartiality and offers some brief reflections
on the value of impartiality.
1. Understanding Impartiality
For most ordinary human beings with their vast range of affective commitments—
to loved ones, place, nation and various institutions, practices or groups—an
impartial stance towards life and its constituents is both impossible and undesira-
ble. To be impartial, which in one sense means to be uncommitted, about one’s life
and the things that give it value is to live a half life, a life without passion and con-
cern. Thus impartiality is hardly an appropriate stance in the relationship between
lovers, siblings or comrades. Partiality is the core of these relationships, since they
are to some degree defined by involvement and, often, unquestioned support.
When one Musketeer happens upon a fight involving the other two and a third
party, his immediate response is to come to the aid of his colleagues (‘All for one
and one for all’ is not the clarion cry of the uncommitted). Only later does he seek
to determine the rights and wrongs of the matter. The attitude of often unques-
tioned or unreflective support, of partiality, that characterizes these relationships
will in some instances be morally questionable. It might, for instance, be morally
more commendable for Aramis or Porthos or Athos to occasionally reflect before,
or even completely refrain from, becoming involved in their comrades’ battles.
Saying that partiality and the related ideas of commitment, concern and pas-
sion are vital to good lives is not, of course, to say that a life with such passions,
commitments and concerns is automatically a good life. Concerns and passions
can often be askew or wrongly directed or prioritized: think, for example, of the
sports fan who seemingly cares more for his team than his family, or of the
motorist who values her car above other road users. But the fact that our lives
are usually chock full of familial, fraternal, institutional and other commitments
at least shows that impartiality is not a ubiquitous presence. Its role in our lives,
if it has one, must be in particular contexts and be played against a backdrop of
entirely normal partiality. Furthermore, regarding impartiality as a virtue in
some contexts certainly does not commit one to the implausible view that a life
without constitutive commitments and concerns is either possible or virtuous.8
8
Some do, however, ascribe this implausible view to others. See, for example, Rackley, above n 5, at 613 (admit-
tedly most often ascribed to a mythical judge) and Young, above n 5, ch 4 (ascribed to some moral and political
philosophers). While Young’s ascription is in some instances correct, much of its critical power derives from an
In which contexts is impartiality an appropriate stance or attitude? One such
context is that of alleviating, mediating, resolving or refereeing disputes or com-
petitions between other parties. Some degree of impartiality seems to be a role
requirement for those called upon to act in this way. We assume, for example,
that it is wrong for football referees to score goals for one side or the other, or for
relationship or dispute mediators to ferociously champion, from the outset, the
cause of one party over the other.9 Similarly, a parent who constantly favoured
one child in disputes or competitions between siblings would undoubtedly be
open to some degree of censure. Such censure exists despite the normally partial,
committed or concerned nature of the familial relationship and it is surely the
existence of conflict or competition between siblings that makes impartiality appro-
priate and necessary. So, for example, we take the apparent neutrality or imparti-
ality of the parents of the Williams sisters, when the two play one another, to be
perfectly normal in that context. Yet parents who took an impartial stance on
every aspect of their children’s lives would clearly be failing in their role.
One feature of the many contexts in which impartiality is in play, then, is that
the party required to be impartial occupies a particular role, that of mediator,
arbitrator or referee. And these roles, of course, are only relevant because of a
second feature of some contexts in which impartiality is expected, namely, that
they are conflictual or competitive. Hence impartiality is appropriate where there
exists a conflict of interests between two or more parties, with a third party being
involved to either police the conflict or to resolve it. This point does not require
a demonstration that impartiality is in place only in contexts of competition or
conflict, which might be a difficult job. Rather, the claim is simply that imparti-
ality is always expected of third parties policing or resolving disputes or competi-
tions, wherever else it might also be in play. Furthermore, it might be true that
the kind of impartiality expected when resolving, refereeing or mediating compe-
titions or conflicts differs from the kind expected and tolerated in other contexts.
So, for example, the degree and form of impartiality appropriate for the parents
of the Williams sisters when their daughters play one another may well be inap-
propriate for the umpire of their game.
It is a mistake to think that impartiality is nothing but a stance or attitude,
albeit one embedded in certain roles. For it is often the case that in competitive
or conflictual contexts impartiality extends beyond the attitude of the mediator,
arbitrator or referee and the specification of her role: it is also incorporated in the
very process by which mediator, arbitrator or referee makes determinations.
Furthermore, in some contexts impartiality might be expected not only of the
process through which decisions are produced, but also of the outcomes of those
alleged disjunction between philosophical accounts of the structure of moral reason and the way we live actual
moral lives: 102–03. This disjunction is only surprising if we make the questionable assumption that the former are
attempts to ‘explain’ the latter.
9
For some eccentric refereeing see www.basildonref.co.uk/articles/2001; for a view of the role of mediators based
on a confused treatment of impartiality/neutrality, see Mulcahy, above n 5.
decisions. These two expectations invoke different senses of impartiality that will
henceforth be labelled (unsurprisingly) procedural and outcome impartiality.10
These two senses of impartiality are most often in play in what might be called for-
mal or legalistic contexts. It is difficult to imagine any but the most precocious
child or legalistic parent making the distinction and expecting it to inform parental
decision-making about sibling conflict or competition. It seems, for such contexts,
a distinction too far. Where the stakes involved in the dispute are higher, though,
the distinction might well be made. Those who face exclusion from a club, for
example, or the termination of their employment, or even the curtailment of their
liberty, might well insist upon it. Insisting on the distinction, however, presup-
poses that it can be coherently made and this requires some attention.
Outcome impartiality characterizes the results of specific decision processes. In
the effort to elucidate the meaning of outcome impartiality, four features seem
significant. Impartial outcomes must, at a minimum, be those that are produced
regardless of (1) the needs and (2) the status of the parties in dispute or compe-
tition. In addition, it might be thought that to be fully or unimpeachably impar-
tial, such outcomes must also (3) pay no heed to past or present deeds of
disputants or competitors and (4) impact to exactly the same degree on dispu-
tants and competitors. Each of these features requires consideration.
Procedures and institutions that generate outcomes responsive to needs are
common. We expect health care systems to allocate treatments in this manner
and would be suspicious of medical practitioners who, for example, took no
notice of patients’ specific ailments in the distribution of medication. Similarly,
it is common to expect social security systems to target their provision at the
most needy and, when this is not achieved, it provides ground for criticism and
complaint. Since needs sensitive decision-making is both common and accept-
able in many contexts, it seems churlish to complain that it generates outcomes
that are not impartial. However, decision-making that is deliberately responsive
to needs can be impartial in some sense: think, for example, of the distribution of
kidneys to those that need them through a lottery or otherwise properly random
process. The snag here, though, is that the lottery or other properly random
process is not impartial in its outcomes, since they are obviously and intention-
ally partial. The lottery is designed to benefit only those requiring a kidney.
Whatever impartiality exists here resides in the processes used to select those
who enter the lottery and in the lottery itself. The point is that partiality in out-
comes is not always a bad thing. Where we require impartiality in outcomes,
though, it seems that we also require needs-blind decision-making. Responsive-
ness to needs is a form of outcome partiality.
10
The distinction is latent in most of the essays in the best treatment of impartiality and neutrality to date:
A. Montefiore (ed.), Neutrality and Impartiality (Cambridge: CUP, 1975). See, in particular, C. Taylor’s discussion
at 128–32 and Montefiore’s at 222–27. Applied to the legal context, the distinction highlights issues elided in the
brief discussion of ‘party’ and ‘issue’ impartiality in K. Malleson, The New Judiciary (Aldershot: Ashgate, 1999) at
64–65. The distinction is missed, however, in M. D. Bayles, Procedural Justice (Dordrecht: Kluwer, 1990) at 22–23,
where it is assumed that impartiality is only a property of procedures and not outcomes.
Status is a far less common factor in the distribution of resources or outcomes
than need, except where the two overlap: for example, one’s status as a patient
determines the allocation of health care. In circumstances such as these, one’s sta-
tus is a function of one’s needs and the notion of status does no independent work.
Furthermore, contexts in which status has traditionally operated—those societies in
which natural superiority is assumed to be a result of birth, for example, or in which
great wealth is taken to indicate such superiority—are now relatively rare and mor-
ally and politically questionable. Perhaps the only situation in which status is an
acceptable determinant of distributions and outcomes is when it wears the guise of,
or is simply a form of, meritocracy. That the most able surgeons of a generation
earn more than other doctors and most other citizens strikes many as entirely
appropriate. A surgeon’s (merit-based) status as the best in her field is accepted by
many as a relevant, perhaps even the only legitimate, determinant of her income.
Merit-based status is, however, clearly an inappropriate basis for the determi-
nation of many outcomes and distributions. In a golf game between the coun-
try’s top surgeon and her non-medical opponent, we assume that the outcome
ought never to depend upon the surgeon’s pre-eminent medical status. Nor
ought a country’s most capable footballer be regarded, by virtue of those capa-
bilities, as beyond the reach of road-traffic laws that bind all citizens. The out-
come of the legal case in which such laws are breached should, we assume, be
completely insensitive to the footballer’s (merit-based) status. The contexts in
which status operates as a determinant of outcomes or distributions are now very
circumscribed, being limited to those situations in which status is but a surrogate
for needs, merit or cognate factors. By contrast, outcomes insensitive to status as
traditionally understood are now common and, moreover, it is their very insensi-
tivity to such matters that allows them to be regarded as impartial.
At least two conceivable types of decision-making process yield outcomes that
ignore past or present deeds of those affected by the outcomes: processes sensi-
tive only to needs and those that are genuinely random.11 Health care distribu-
tion is, in the main, solely sensitive to needs and therefore usually ignores the
contribution of the needy to their own ailments. No or little assessment is made
of the moral or other quality of patients’ past conduct. The smoker, the reckless
driver and the moral imbecile usually get the medical care they need regardless
of their desert. Coin flipping or the picking of straws or balls is another means of
generating outcomes that ignore past or present deeds of those affected by the
outcome. The method of drawing opposing teams for FA Cup games in English
football is a process that guarantees outcome impartiality in this sense, teams
being matched with one another through a random process of ball selection.
Teams are not allocated opponents on the basis of how well or badly they played
in the previous round, except in the sense that teams must have won in the pre-
vious round to be in the draw for the next. Nor are opponents allocated on the
11
For an interesting discussion of genuine and non-genuine randomness see N. Duxbury, Random Justice
(Oxford: Clarendon Press, 1999) at 63–70.
basis of financial need, in which case the financially weakest clubs might play the
wealthiest, the ties being regarded as an opportunity for income generation
rather than as a genuine competition. A different response to financial dispari-
ties, in which less well off opponents are given help, beginning matches against
wealthy clubs with, for example, an extra player or a one goal advantage, is also
eschewed.
The outcomes of many decision-processes clearly do not impact equally on
the disputants or competitors. A football referee’s decision to award a penalty to
the other team obviously does not impact in exactly the same way upon my
team. The award of a penalty makes it quite likely that our opponents will be
advantaged (they will score a goal) and our team will thereby be disadvan-
taged.12 It is only when the award of a penalty is seen as a response to wrongful
advantage-taking (a player in my team fouling an opponent so as to prevent him
from scoring), that it comes close to achieving equality of impact. The effect the
award is designed to achieve is to correct the wrongful advantage my team has
already gained. The penalty award cannot therefore be viewed in isolation from
the events that gave rise to it.
As this example makes clear, it is often not straightforward to see how out-
comes can possibly impact to exactly the same degree upon the disputants or
competitors affected by them. The primary difficulty in ensuring that an out-
come benefits both competitors or disputants to exactly the same extent, or
thwarts both to the same degree, or affects neither in any way at all, is that com-
petitors and disputants differ considerably in their abilities, attributes and
resources. Consider this well-known example:
[T]wo children may each appeal to their father to intervene with his support in a dis-
pute between them. Their father may know that if he simply ‘refuses to intervene’, the
older one, stronger and more resourceful, is bound to come out on top. If he actively
intervenes with equal help or hindrance to both of them, the results will necessarily be
the same. If he wants to make sure that they both have roughly equal chances of
success . . . then he has in practical terms, to help one of them more than the other.13
Although ensuring that the outcome of any process impacts equally upon those
unequally situated is not easy, since our inequalities are as diverse as our differ-
ences, it is in principle possible. It would require a thorough appreciation of each
party affected by an outcome in all their particularity, an intricate grasp of them
in all their subjectivity. The effort to incorporate this kind of detailed and dis-
criminating concern into a body of rules would undoubtedly result in a particu-
larly complicated rule structure that would accordingly be difficult to interpret
and apply. The prospect of such difficulty ensures that many rule structures
ignore most aspects of the parties’ subjectivity, the effort to ensure equality of
12
While an obvious example to any sports fan, it was probably first introduced to academic discussions of impar-
tiality and neutrality by Montefiore, above n 10, at 8.
13
Ibid at 15.
impact aiming only at parity in one or a very few dimensions, such as the parties’
health, for example.
Procedural impartiality, as its name implies, highlights a property of the rules
and practices that constitute many decision-making processes. These rules will, of
course, differ according to the decision-making process in question, on whether it
is, for example, an instance of refereeing, arbitration, mediation or adjudication.
Nevertheless, there are most likely some features that all these decision-making
procedures must have in order to be regarded as impartial in this sense. And,
while these different instances of decision-making suggest that procedural impar-
tiality is most commonly in play in formal or legalistic contexts, this is clearly not
always so. We should therefore expect that some, if not all, of the features of
procedural impartiality to be found in both formal and less formal contexts.
One feature of procedural impartiality is that the rules constitutive of some
decision-making process must, at a minimum, favour neither party to the dis-
pute-cum-competition or favour or inhibit both equally. Impartiality here is
again a matter of equality of impact.14 It is easy to imagine rules for the resolu-
tion of disputes that clearly disadvantage one party over another. Think, for
example, of a situation in which some decision process either systematically
ignored or accorded little value to the views of one or other kind of disputant.
Similarly, procedural rules or institutions that failed to take account of signifi-
cant differences between disputants would not treat disputants equally. Such signi-
ficant differences might include, for example, the inability of one or other disputant
to speak the language in question or to fully understand what is going on.
Such rules either rob members of these groups of the opportunity to be heard
when involved in a dispute or affected by the outcome of some decision, or
devalue their participation in the decision-making process. Although the exam-
ples here often sound legalistic, it is not only the parties to legal disputes who,
for example, assume that impartiality requires that they both be heard. Parents,
too, are expected to adhere to a version of this requirement. Beleaguered indeed
will be the parent who curfews one child solely on the basis of another child’s or
sibling’s testimony. The value attached to hearing both sides of the story is not
only epistemic and, in some situations, the epistemic payoffs from hearing both
sides may in fact be negative, making matters more rather than less obscure. This
explains why it is sometimes appropriate to completely ignore the parties’ views.
But when both parties in dispute or competition have a right to be heard regard-
less of the epistemic payoffs, this right serves to reduce the space for partiality or
bias in decision-making. It does not, however, make improper partiality impossi-
ble, since both views can be heard and one completely ignored, but it is more
difficult than it might otherwise be. This is one reason why this requirement is
regarded as vital in most disputes except those arising in sporting competitions.
14
My use of this phrase has little to do with the usage in R. Dworkin, Sovereign Virtue (Cambridge, Mass.:
Harvard UP, 2000) at 191–94.
For, since the epistemic payoffs from hearing both sides are not always positive,
and since there are other requirements in play in sporting competitions—a
limited amount of time for the game, for example—it seems inappropriate to
impose a duty on umpires and referees to hear both sides before making a
decision.
What other features does the notion of procedural impartiality have, beyond
that which insists that impartial decision-making processes must ensure both
sides to the dispute or competition are either heard or ignored to the exactly the
same degree? One such feature is that impartial decision-making procedures
embody impartiality as a role requirement. We have already noted that referees
are expected not to favour one side over the other in a game and that mediators
and arbitrators should not, at the outset at least, champion one side or the other
in a dispute. This expectation is often incorporated in the rules that specify how
mediators, referees and others required or requested to resolve, mediate or
police disputes or competitions should behave. It is usually the case, then, that
in such contexts those resolving or mediating must exclude themselves from that
role if they have a genuine interest in its outcome or if they might be perceived to
have such an interest. Hence, if a mediator stands to benefit from the outcome
of a dispute, or a referee will gain (as a result of gambling, perhaps) from the
outcome of a game, they are barred from officiating. The bar usually operates
either through a requirement that all such interests be declared or via a prohibi-
tion on certain activities (no gambling on the outcome of games). Similarly, if
the mediator or referee is a relative, friend or acquaintance of one or other of the
parties in dispute or competition, they are usually prohibited from officiating or
must declare that interest and continue only if the parties assent. In less formal
contexts, this feature is of little relevance. A parent, for example, is a decision-
maker always in some sense interested in the outcome of a dispute between sib-
lings and it is difficult to imagine an outcome that will not affect the parent and
equally difficult to conceive how siblings could object to this. Objecting to par-
ents being affected by, or having an interest in, the impact of their decisions
upon their children is akin to objecting to parents being parents.
In summary, it seems that impartiality is usually in play when a third party is
either asked or required to mediate, arbitrate or referee a dispute or competition.
While there may indeed be other contexts in which impartiality is relevant, its
role in our lives nevertheless seems somewhat limited. That, of course, is how
things should be if it is the case that partiality is the norm in our lives, that lives
properly lived are rich in affective commitments and concerns. When those con-
cerns need to be set aside, impartiality is appropriate. But what does impartially
mean in this context? This is determined by three considerations. The first is
probably the most obvious: it is a matter of attitude and role. Those asked or
required to be impartial are not only constrained by role requirements (for a ref-
eree, mediator, etc.), but are also expected to approach the competition or dis-
pute in a non-partisan frame of mind. In more formal contexts, attitude and role
requirements are supplemented by a range of procedural requirements that often
embody both the expectations of disputants and the duties of arbitrators, refer-
ees, etc. When such procedures exist, their impact upon disputants is always a
significant and possibly controversial issue. It is also conceivable that in some
contexts, formal or informal, impartiality extends beyond attitude, role and pro-
cedures to include outcomes, although this sense of impartiality may be difficult
to realize.
No sustained effort has been or will be made to distinguish impartiality from
cognate terms, including neutrality, its closest relative. The reason for this is the
belief that impartiality and neutrality are, in ordinary usage at least, very close
relatives: they are more or less synonyms. This much is obvious from the fact
that slippage between the two terms is ubiquitous—it is not only accomplished
rhetoricians like Edmund Burke who would, in proclaiming ‘[t]he cold neutral-
ity of the impartial judge’, run the two together.15 Furthermore, that the two are
near synonyms is attested to by the fact that efforts to distinguish them appear
merely stipulative, inventing a distinction not actually there. A notable example
is Leszek Kolakowski’s assertion that impartiality is a matter of intervening in a
conflict or competition with a view to influencing its outcome by applying gen-
eral rules independent of the particular case; neutrality, by contrast, involves
deliberately acting so as to not influence the outcome of a conflict or competi-
tion.16 As a stipulative definition this is unproblematic and it bears what little
weight such definitions usually carry. Considered as anything more than that,
however, it is almost entirely without merit, there being no basis in either ordi-
nary or technical language upon which it can be supported. As Alan Montefiore
notes, Kolakowski’s stipulation leads us to oddities such as, for example, holding
that a neutral country or international body loses its neutrality as soon as it
becomes involved in mediating between disputants.17 Furthermore, it seems per-
fectly normal and intelligible to say at least two additional things about this
example that Kolakowski’s definition would prohibit. The first is that the coun-
try’s or body’s neutrality is a sound basis for it becoming involved and, second,
that it is not an obvious mistake for the disputants to assume that the neutral
country or body is, by virtue of its neutrality, impartial. In instances such as these,
to speak of or invoke one is to speak of or invoke the other.
Finally, what of the foundation of this analysis of impartiality? Whatever accu-
racy or power it has derives from two sources, each of which might be thought
feeble. One source is our ordinary language and the discriminations and dis-
tinctions embodied in it in particular contexts, while the other is simply that
15
The phrase is from the translator’s preface to J. P. Brissot, To his Constituents . . . (London: John Stockdale,
1794) at iv. While usually attributed to Edmund Burke, there is some suggestion that the translator—and therefore
presumably the author of the preface—was William Burke. On the point of substance, see also C. Taylor at 128–29
and Montefiore at 223–26 of Neutrality and Impartiality, above n 10, where Montefiore notes that Taylor’s move-
ments between neutrality and impartiality is ‘somewhat easy-going’ but not in any meaningful sense wrong.
16
L. Kolakowski, Neutrality and Impartiality, above n 10 at 72–73.
17
Above n 10 at 200–201.
collection of seemingly inescapable or necessary protocols—including the rules of

standard logic and the value of consistency—that define acceptable work in the
human and other sciences. If either of these sources is weak, if, for example,
ordinary language and its constitutive distinctions are riven with contradiction, or if
the protocols of the human sciences are unworthy of respect, then the analysis is
of little value. Furthermore, the analysis stands or falls according to how well it
captures our ordinary use of a concept in some familiar and mundane contexts
and that aim can be compromised by disciplinary protocols. The value attached
to providing a consistent analysis of impartiality can, for example, conflict with
the possibly inconsistent and conflictual contours of ordinary language. Should
such a disjunction arise, it will be necessary for the theorist either to report the
conflict and leave matters thus; or to seek to resolve the conflict by, for example,
arguing that one meaning in ordinary language is better or more important than
others.18 Neither step is taken here, for the analysis provided holds that ordinary
thought and language contains an account of impartiality which is coherent and
reasonably complex. This is significant, since it shows that impartiality can be
understood independently of the mass of contestable political and moral theories
in which it often features. Moreover, since impartiality is independent in this way,
it cannot be attacked or discredited simply by rejecting the theories in which it
often features. It is hoped that concentrating upon the account of impartiality
latent within ordinary thought will save us from a range of high philosophical dis-
tractions, while throwing impartiality’s various features into sharp relief.
2. Impartiality in Adjudication
Does the general account of impartiality just offered have any resonance within
the adjudicative context? In order to answer this question, what follows is
divided into three. The division is somewhat artificial, since the three issues
sometimes overlap, but it allows a clear appreciation of the various senses in
which judges, adjudication and the law are and are not impartial.
A. Attitude and Role

Can the commitments that constitute their lives, just like those that constitute
ours, be set aside when judges are called upon to be impartial? If this question is
directed at all judges’ affective commitments, then the answer must be no. It is
no more possible for judges to divorce themselves from the commitments that
give their lives meaning and value than for anyone else. Impartiality, however,
only makes sense against a background of partiality. As a general attitude to life
impartiality might be possible but certainly not desirable. Judges who embodied
18
To this end, it might be argued that the preferred sense is the central case or focal meaning of the concept in
question: see J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press 1980) at 6–11 and his Aquinas
(Oxford: Clarendon Press 1998) at 29–51.
it as a general orientation to life would set aside what they know of human kind
and their lives. The beings then judging us would know nothing at all of what
standard human lives look and feel like or, knowing something, would com-
pletely ignore it. Expecting real judges to embody such an attitude would be to
expect them to live debased lives. Just like us, their commitments and associated
experiences make them the people they are; they serve to give judges both prior
knowledge of human life and found various pre-judgements and evaluations in
their own lives.
While there is much to be said in favour of being judged by those who have
some understanding and experience of life and their fellow human beings, this
very understanding and experience can cause difficulty. For the commitments,
pre-judgements and values that structure judges’ lives might impede attitudi-
nal impartiality: their life experiences might be either so limited or of such a
kind as to prevent them from adhering to the most minimal requirement of
impartiality in the context of legal disputes, namely, an attitude of openness to
and lack of pre-judgement upon the claims of the disputants. Ideally, this atti-
tude is but part of a general stance of openness to difference and diversity
among citizens, for it is only this that allows judges to go beyond being
open-minded about disputants’ claims to a more general appreciation of the
disputants’ general situation and circumstances.19 To call this empathy is to
exaggerate; it is merely a combination of open-mindedness to, and a willing-
ness to suspend assumptions about, both the disputants and their dispute.
Moreover, it is the disputants’ conduct and the legal nature of their dispute
which ensures that judges do not have to do the impossible in order to be
impartial, since it is only those of their commitments relevant to the parties
and their dispute that judges must hold in check. That judges are capable of
suspending at least some such commitments and acting contrary to their pre-
judgements is clear from cases in which they lament the decision the law com-
pels them to reach.20
The attitude of openness to and lack of pre-judgement upon the claims of the
disputants takes institutional form in at least two ways. First, in a concern with
the constitution and appointment of the judiciary itself. For the judiciary to be
capable of a general stance of openness to, on the one hand, the disputants, their
background and situation, and, on the other, the merits of their dispute, it is
desirable that individual judges have had not only a range of life and professional
experience, but also that, as a group, they reflect the gender, cultural, ethnic and
religious diversity of the community in which they work. Calls for a more repre-
sentative judiciary are therefore surely calls for a judiciary better able to under-
stand, and less likely to pre-judge, the experience, background and situation of
19
The point belongs to M. Minow, ‘Stripped Down Like a Runner or Enriched by Experience: Bias and Impar-
tiality of Judges and Jurors’ (1992) 33 William and Mary L R 1201–18 at 1214–17.
20
See MacCormick, above n 3 at 21, for an example.
those before them.21 As such, these calls buttress rather than undermine judicial
impartiality.
Second, the attitude of openness is embodied in many requirements of the
judicial role. These requirements are found in, inter alia, explicit legal doctrine
(aspects of which will be noted in section C, below), codes of judicial behaviour
and aspects of judicial training. In England these codes and training programmes
are developed and implemented by the Judicial Studies Board and include all
judges and magistrates. Beyond training programmes updating judges on, for
example, changes in various areas of the law, such as sentencing and human
rights, the Board has an Equal Treatment Advisory Committee and issues an
equal treatment and diversity benchbook for judges.22 Documents of this kind,
which serve to remind judges of the multi-ethnic, multi-cultural and gendered
society in which they live and work, surely reinforce the attitude of openness and
lack of pre-judgement that are hallmarks of attitudinal impartiality. Of course, it
is foolish to suppose that documents and training programmes will make inap-
propriate partiality impossible, but they undoubtedly serve to make it more diffi-
cult. More importantly, perhaps, such documents and training programmes
challenge automatic, unreflective assumptions, patterns of thought and pre-
judgements that can covertly thwart attitudinal impartiality.
Finally, an important and obvious constraint upon the attitudinal impartiality
of judges must be noted. Although we might want and expect from judges an
openness to the claims of the disputants, combined with no pre-judgement of
the disputants themselves, that stance is necessarily constrained by the fact that
judges decide disputes within the perspective of the law and its constitutive val-
ues. This is undoubtedly a role commitment, embodied in judges’ duty of fidel-
ity to the law, as well as a matter of attitude. Yet since this openness is
constrained by the values of the law, and since the list of legal values is a rela-
tively closed and slowly evolving one, a tension can arise here. In some
instances, for example, legal values could conceivably either inhibit or make
impossible openness to particular types of legal claim despite compelling extra-
legal arguments that they be recognized. Indeed, some legal claims might simply
be unthinkable in light of the values and doctrines of a legal system at a particu-
lar time.23 Furthermore, some legal values could be so objectionable as to reduce
or completely remove whatever moral and political value attitudinal impartiality
may have. Openness to, and a lack of pre-judgement upon, particular legal
claims, and the general openness to diversity and difference from which this par-
ticular attitude might derive, would be of no or only minimal value within, for
21
Nor are such calls made only by academics. See B. Wilson, ‘Will Women Judges really make a Difference?’
(1990) 28 Osgoode Hall L J 507–20 and B. Hale, ‘Equality and the Judiciary: Why Should We Want More Women
Judges?’ (2001) Public Law 489–504. See also R. Greycar, ‘The Gender of Judgements: An Introduction’, ch 12 of
M. Thornton (ed.), Public and Private—Feminist Legal Debates (Melbourne: OUP, 1995).
22
The benchbook can be viewed on the Board’s website: http://www.jsboard.co.uk. The website is a good intro-
duction to the Board’s work and concerns.
23
A vivid illustration is the contrast between the early marital rape exemption cases in criminal law and the deci-
sion of the House of Lords in R. v R [1991] 4 All ER 481.
example, the legal system of the Third Reich. The general point here is that
impartiality in adjudication, like impartiality elsewhere, exists within the context
of partiality: in the case of judges, it is partiality to the rules, standards and val-
ues that constitute the legal system. There is no guarantee that these rules,
standards and values will always be morally and politically respectable.
B. Outcome Impartiality
In part I it was held that outcomes impartial in the strongest sense are those
arrived at regardless of the (1) needs, (2) status, (3) past or present conduct of
those effected by them, and which (4) impact to exactly the same degree upon
those effected by them. It is argued here that while the first two features are hall-
marks of most adjudicative outcomes, the last two hardly ever are, although the
fourth might be present in a problematic or emaciated form. Adjudication is not
therefore outcome impartial except in a limited or incomplete sense. As will
become obvious, this is not generally a cause for regret but rather an inescapable
consequence of using law and adjudication as a means of subjecting human con-
duct to the governance of rules.
Although, as we noted earlier, there are a number of processes designed to gen-
erate outcomes sensitive to needs, it would be odd to imagine courts resolving dis-
putes and reaching outcomes in a similar, needs-sensitive way. The prospect of a
court resolving all disputes in favour of the neediest or worst-off disputant, for
example, would conflict with what many expect from adjudication. Similarly, it
would be a surprise for many were judges to decide particular cases not on the
basis of the relevant law, but by an analysis of who would be most adversely
affected by the judgement. Holding in favour of the plaintiff because she would
suffer most if the decision went against her seems to mistake the law for an alto-
gether more sensitive—and possibly more ethically respectable—means of dispute
resolution. Much the same reservation would be in play were a court constantly to
resolve disputes in favour of the wealthiest or most high status (however assessed)
disputants. The law and the courts are supposedly blind to differences in status
and needs, treating both mighty and lowly in exactly the same way. All are alleg-
edly equal before the law. The needs and status of the disputants are therefore
usually and rightly ignored. The former could, of course, be relevant in the cir-
cumstances of some legal disputes, such as those that turn upon the welfare of one
or other of the disputants, whereas the latter, taken to refer to personal wealth,
might sometimes be relevant in the assessment of damages or fines.
The third feature of outcome impartiality is that decisions or outcomes be
arrived at regardless of the disputants or competitors past or current conduct. It
is undoubtedly possible to do this but, in the adjudicative context, most likely
undesirable. This is because we—lawyers, citizens and commentators—conceive
of adjudication as a backward looking inquiry into past conduct. This, conjoined
with the fact that adjudication is almost always concerned only with the bilateral
relationship between the disputants before the court, could well be a defining
characteristic of this particular social form.24 Furthermore, the backward look-
ing, bilateral nature of adjudication is almost always censorial. It is a process of
determining right and wrong, the relevant standards and values most often being
provided by the law and supplemented by positive morality. The conduct of the
disputants is judged according to the law; a wrongdoer is identified and ordered
to make good the wrong in whatever way the court thinks (legally) appropriate.
Adjudication, obviously, is judgmental. It judges the disputants’ behaviour and
character, insofar as the former elucidates the latter, against the rules, standards
and values of the law. Of course, not every aspect of the disputants’ character and
behaviour is in the frame for judgement. Rather, the focus is only upon that con-
duct relevant to the alleged legal wrong. Since a general judgement upon the dis-
putants’ conduct or character is hardly ever on the cards, even a blackguard might
win his case: if his conduct in the case is legally unimpeachable he will succeed
even though he is in general an unprincipled scoundrel. Yet even though adjudica-
tion rarely, if ever, extends its judgement to every aspect of the disputants’ con-
duct and character, its judgement is nevertheless always partial and evaluative.
Judgement is made in accordance with the values of the law. And the judicial duty
of fidelity to law must include, if recourse to purposes and values is unavoidable in
rule application and interpretation, fidelity to those purposes and values.
This kind of partiality appears unproblematic and, indeed, inescapable. This
is because it would be neither realistic nor sensible to expect adjudication to
eschew the values of the law, unless it were true that law could be in some sense
value-free. Whatever the latter phrase might mean in other contexts, in this con-
text it must, in order to give this putative objection some sense, mean that law
has no point or purpose. But, as soon as it is conceded that law is a purposive
institution, it becomes unavoidably normative: law in general and the law of par-
ticular jurisdictions consists not only of a collection of standards, requirements
or prohibitions, but also of a range of purposes that animate them. It is the
purposes presupposed or explicitly stated by legal standards that give law its
value-structure; without such purposes, law would seem literally pointless. Non-
purposive standards for human conduct are the raw material of comedians and
tyrants. Since adjudication is a matter of interpreting and applying legal stand-
ards, requirements and prohibitions, it cannot be impartial as to the purposes or
values underpinning those standards and which constitute the law’s value struc-
ture. Adjudication cannot be impartial about everything, about every rule or
piece of conduct, every value or belief; were it to be so, it would cease to be adju-
dication, cease to be judgement according to law and its underpinning values.
Nor can particular adjudicators, referees, mediators or arbitrators be impartial
about the standards and rules—and their underpinning purposes or values—
24
The points about the historical and bilateral nature of adjudication constitute a compelling criticism of some
aspects of neo-classical law and economics: see J. Coleman, The Practice of Principle (Oxford: Clarendon Press,
2001) at 13–24.
applicable to the competitions or disputes before them. For, if they are to apply
and interpret the standards, requirements and prohibitions of the practice in question
in a rule-governed and not merely habitual way, they must have a ‘pro-attitude’ to
those standards and, by implication, their underlying purposes and values. This
pro-attitude is a comprehensive way of referring to the three principal components
of Herbert Hart’s influential and important account of rule-governed behaviour.
The latter differs from merely habitual behaviour because those engaged in it
regard the behaviour in question as not merely convergent but as also in accord
with a standard for their own behaviour and that of others; they also regard depar-
tures from the standard in question as giving grounds for censure and complaint
and think such censure and complaint perfectly legitimate. In Hart’s richly sugges-
tive summary phrase, those whose behaviour is rule-governed have a ‘reflective
critical attitude’ to the standards (or rules) they follow, apply and interpret.25
But why, it may be asked, must the behaviour of judges, referees and others
who apply and interpret standards be rule-governed in this sense? There is no
immediately obvious necessity that it should be an instance of rule-governed
behaviour, since we can imagine judges deciding cases in a rule-governed way
and judges deciding similar cases ‘merely habitually’ arriving at exactly the same
results in many instances. However, what we expect of good judges deciding
hard cases is judgement, where what is meant is not simply a resolution of the dis-
pute, but a discerning assessment of what the law and its underpinning purposes
or values require in the particular case. At this point the judge who is acting
merely habitually comes unstuck, since a discerning judgement about what the
law requires is only possible on the basis of some reflection about the law, its
underpinning purposes and their value. Indeed, habitual behaviour and behav-
iour based upon judgement—upon an assessment of what it is that is required in
this particular instance—are probably opposites. Insofar as the judge deciding
cases habitually is required to give reasons for her decisions, she is in fact
unlikely to be truly acting habitually. Moreover, insofar as judges are required to
display consistency across time in their interpretation and application of the law,
and therefore in the outcomes they reach in similar cases, they are unlikely to be
able to behave merely habitually. This is because habitual ‘interpreters’ and
‘appliers’ of standards are unlikely, by virtue of their habitual behaviour, to
achieve much by way of reliability or consistency if the cases before them dif-
fer.26 If every case requiring decision were exactly the same in all significant
respects as cases already decided, then the decisions of the judge deciding cases
habitually might differ little from the judge whose interpretations and applica-
tions of the law were instances of rule-governed behaviour.
25
H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 2nd edn, 1994) at 57. That Hart thought the operators
of a system of legal rules must regard the rules in this light and that they sometimes must, when interpreting or applying
such rules, have recourse to the aims or purposes of the rules, is plain from p. 117 and p. 127. A still unsurpassed discus-
sion, admirably clear and succinct, is N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981) at ch 3.
26
The scare quotes are necessary simply because there must be real doubt as to the possibility of habitual rule
interpreting and applying.
The partiality of adjudicative outcomes is, it seems, at least double-edged.

They are partial in that they judge one or other disputant right or wrong and
partial because the values and standards against which that judgement is made
are those of the law. These values and standards also need not, of course, over-
lap with those of the disputants. However, an apparently necessary consequence
of this is that there is yet another way in which adjudicative outcomes are partial,
namely, they do not in any literal sense impact equally upon the disputants.27 If,
as we have seen, those outcomes judge one or other disputant a wrong-doer and
order him to undo that wrong by, for example, paying damages, doing what he
said he would, or correcting it in some other way, then it is prima facie implausi-
ble to claim that those outcomes impact equally on the disputants. Adjudicative
outcomes do not, then, display the fourth feature of outcome impartiality.
Nevertheless, there is a view from which this conclusion might seem an exag-
geration, a view which holds that there is a sense, possibly strained, in which
adjudicative outcomes could impact equally on the disputants even in the face of
the inequality of impact just noted. It begins with the fact that neither law nor
adjudication pays much or even any attention to the rich particularity of the par-
ties in dispute. The manifold diversity of particular disputants, with their com-
plex and various traits, personalities, commitments and experiences is usually
juridically irrelevant. In the eyes of the law, the disputants are simply formally
equal, abstract rights-bearers. The equality of the disputants is the formal equal-
ity of those with the same capacity to bear rights and of those who, by virtue of
their status—as persons and as citizens—have the same bundle of abstract rights
(to bodily integrity, to contract, to hold property, etc.). Interestingly, law and
adjudication could embody the fourth feature of outcome impartiality on the
basis of this formal conception of equality. How? Adjudication rights wrongs; it
restores, within the context of a specific legal dispute about some particular
right, the abstract legal right of one disputant that has been infringed by the
other. The outcome of the case never impacts to exactly the same degree on the
disputants because it functions so as to correct the disturbance of the pre-exist-
ing equality of abstract rights that obtained between them. The adjudicative out-
come impacts more severely on one disputant (the wrong doer) than the other in
order to equalize their formal legal standing. In this way, adjudicative outcomes
promote formal equality and thereby maintain or restore a regime of equality.
This could perhaps be called the pursuit of equality of impact. One party has
wrongfully obtained an advantage from, or imposed a harm upon, the other that
the adjudicative outcome seeks to restore.28
This account of the way in which adjudicative outcomes might impact equally
upon the disputants requires some work to be plausible. For instance, the notion
27
It is often assumed that impartiality (and neutrality) must be a matter of equality of impact. See, for example,
the essays by Montefiore at 6–7 and Kolakowski at 72–73 in Neutrality and Impartiality, above n 10 and J. Raz, The
Morality of Freedom (Oxford: Clarendon Press, 1986) at 113.
28
This, of course, is an echo of the sophisticated account of legal formalism in private law defended by
E. Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard UP, 1995) chs 1–4.
of formal equality must be unpacked and an account provided of the benefits of
that notion. In addition, some justification is needed for the practice of redress-
ing formal inequalities against a background of substantive inequalities. Since
adjudicative outcomes and their effects upon disputants are mediated through
this apparently problematic conception of formal equality, it cannot he said that
those outcomes impact equally upon the disputants in anything like a straight-
forward way. Adjudication cannot, therefore, be said to be unproblematically
impartial in either this regard or in relation to the past or present deeds of the
disputants. Adjudicative outcomes therefore straightforwardly embody only two
of the four aspects of outcome impartiality.
C. Procedural Impartiality
The account of procedural impartiality developed in part I holds that the rules
and practices of decision-making processes must, at a minimum, favour each dis-
putant or competitor equally, or favour neither, or inhibit both equally. In gen-
eral terms, then, procedural impartiality is a matter of equality of impact and
there is no reason to think things are different within the adjudicative context.
However, as was noted in the discussion of outcome impartiality, equality of
impact is made difficult by the differences between us and it seems that impartial
procedural rules must therefore accommodate or mitigate some of those differ-
ences. So, in order to ensure that no disputant is disadvantaged by adjudicative
procedures, the rules and practices constitutive of those procedures must, in
addition to not directly discriminating against disputants, also take account of
significant differences between them. What is and is not a significant difference
is, in the first instance, determined from the juristic point of view, from the point
of view of the law and its constitutive values.
One such generic, constitutive legal value is that of participation. This sounds
vague but, in concrete terms, it includes at the very least a requirement that
disputants understand legal processes and their implications. Within the context
of adjudication, procedural rules that made no provision for disputants who did
not speak the language of the trial would fail in this respect. Only if some effort
were made to address such an important difference between disputants could it
be said that the relevant procedures approached impartiality. However, under-
standing the language of the trial implies only a very minimal conception of par-
ticipation and a more demanding conception could be insisted upon. For
participation can be taken to mean genuine involvement—albeit through the
medium of legally qualified representatives—in the trial process. Genuine
involvement in, as opposed to simple understanding of, the process requires that
at least four conditions be satisfied: that disputants have an opportunity to be
heard; that they have accurate information about the claims made against them;
that they be allowed an opportunity to respond to those claims; and that they are
made aware of all the relevant administrative requirements.
These four conditions ensure that disputants are not merely impassive observers
of the process but engage in it as something like a dialogic enterprise.29 This kind of
participation seems necessary if law and adjudication are to approach legitimacy in
the eyes of those they bind and judge. There must be some sense in which the law,
and the processes of adjudication through which it is applied and interpreted, is the
disputants’ law. It is, and claims to be, the law of their community, to bind them as
citizens and a step toward ensuring this is to involve disputants in the process of
resolving those disputes.30 Of course, highlighting the significance and nature of the
disputants’ involvement in the adjudicative process should not obscure some diffi-
culties. One is that, as a matter of fact, disputants’ involvement in existing adjudica-
tive processes is fairly slight, being filtered through, and perhaps even completely
determined by, legal representatives. Another is that the link between dialogic par-
ticipation in, and the legitimacy of, adjudicative processes is far from obvious. This is
particularly so if, when speaking of legitimacy, we have justified political authority
(which entails an obligation to obey) in mind. The problem is bridging the gap
between accounts of political authority and the requirement of participation.
The four conditions for participation highlight an obvious overlap between the
generic rules of natural justice and a concern for procedural impartiality.31 It is
only a contingent overlap, though, since simple observance of the rules of natural
justice cannot ensure that in all cases those rules impact to exactly the same degree
upon the disputants. This is so even though the basis of both the rules of natural
justice and the idea of procedural impartiality—some notion of participation—is
most likely the same. An obvious illustration that the two do not cover exactly
the same ground is this: in many modern legal systems the cost of legal represen-
tation is a serious impediment to participation in the adjudicative trial process.
If legal representation is available only to those who can afford to pay, and if it is
true that legal representation significantly influences disputants’ likelihood of
success, then those who cannot pay are undoubtedly disadvantaged in the adju-
dicative process.32 A concern to ensure that rules and procedures of the adjudi-
cative process impact equally on the disputants would therefore seem to require
legal representation for all. However, the rules of natural justice clearly do not
require this in all legal or administrative disputes, nor is it contrary to those rules
for some forums hearing and resolving disputes to prohibit legal representation,
provided the decision to that effect is both properly arrived at and reasonable.33
29
For Fuller this participation dimension of adjudication also has significant epistemic pay-offs: see Forms and
Limits, above n 1 at 353–72. Also, for a similar refrain, see D. Galligan, Due Process and Fair Procedures (Oxford:
Clarendon Press, 1996) at ch 4.
30
This is a clumsy echo of an altogether more subtle argument offered in R.A. Duff, Punishment, Communication,
and Community (New York: Oxford UP, 2001) at chs 2 and 3.
31
The standard treatment of the rules of natural justice is H.W.R. Wade and C.F. Forsyth, Administrative Law
(Oxford: Clarendon Press, 8th edn, 2000) Pt VI. Also interesting is Galligan, above n 29, chs 11–14 (ch 14 also
contains some brief but interesting thoughts on impartiality).
32
For a general discussion of representation see Galligan, above n 29 at 361–91 and Bayles, above n 10 at ch 3.
33
Two key cases are: R. v Home Secretary, ex parte Tarrant [1985] QB 251 and R. v Board of Visitors, ex parte Hone
[1988] 2 WLR 177.
Procedural impartiality in adjudication must go beyond simply ensuring that
disputants are equally able to participate in the process and that its rules and
requirements impact on both to exactly the same degree. This is because a set of
impartial rules and practices could easily be thwarted either by those who
enforce the rules—officers of the court, administrators and others—or by
those—judges or magistrates—who resolve disputes with those rules. The latter
could most vividly thwart impartiality by favouring one or other disputant on
grounds irrelevant to the dispute. Procedural impartiality must therefore include
some obligations upon those adjudicating, refereeing or mediating disputes
which, to some extent, simply mirror the expectations disputants have of an
impartial process. Within legal contexts there is a range of standard protections
against bias or partiality. These include the requirement that judges (and rele-
vant others) hear both sides to the case, that the principal issues in dispute are
put before the judges and tested or questioned by the disputants, their legal rep-
resentatives and the judges themselves, and the prohibition on ex parte commu-
nications.34 Furthermore, there are obvious restrictions upon judges (and
relevant others) deciding cases in which they have a financial or other interest, or
in which they are friends with one or other of the disputants, or in which they are
aware of information prejudicial to one of the disputants.35
Yet even this might not be enough for a robust conception of procedural
impartiality in the adjudicative context. For it might be thought that procedural
impartiality here also requires some limitation upon the type of consideration
relevant in judicial decision-making. This additional requirement is latent in much
of what has already been said about both outcome and procedural impartiality
and therefore illustrates one way in which these two features can overlap. Further-
more, the requirement is doubled-sided. In order to see this, the first and almost
painfully obvious point is that adjudicative outcomes are arrived at by reference to the
relevant applicable law, both substantive and procedural. It is the relevant law, of
course, that the disputants or their legal representatives put before the court and
about which, in hard cases at least, they are usually in dispute. Moreover, the rele-
vant law often has to be applied so as to be consistent with other decisions and
more general legal principles; and one of the latter, the principle that like cases be
treated alike, serves to uphold impartiality or at least frustrate obvious partiality in
judicial deliberations. If legally like cases must be treated alike, then the plaintiff
in Stevenson v Donoghue (the legal issue and legally relevant facts being exactly the
same as Donoghue v Stevenson) must prevail even though the judges dislike her,
find her character, behaviour and beliefs suspect. This bulwark against partiality
is limited insofar as judges are able to determine what is and is not a legally rele-
vant difference, but it is not illusory. The principle imposes a burden upon the
34
On ‘the hearing principle’ see Galligan, above n 29 at ch 12 and Wade and Forsyth, above n 31 at ch 15.
35
See R. v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) [1999] 1
All ER 577; Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas. 759; and P. Murphy (ed.), Blackstone’s
Criminal Practice (Oxford: Clarendon Press, 2002) at 1039–43. A helpful discussion of post-Pinochet cases is
K. Malleson, ‘Safeguarding Judicial Impartiality’ (2002) 22 Legal Studies 53–70.
court to say why a putatively like case is not actually sufficiently legally similar to
the current case, and that burden at least makes improper partiality more difficult
than it might otherwise be, although not actually impossible.
The other side of the requirement that adjudicative outcomes be arrived at by
reference to the relevant applicable law can now be made clear. The fact that
judgement is made only on the basis of legal arguments put before the court pro-
tects or promotes impartiality because these factors serve to exclude others. It is
the legal arguments disputants put before the court that are important and not,
for example, the judges’ personal views of the disputants. Judgement must be
based on the law and not some assessment, unless it is part and parcel of the law, of
one or other of the disputants’ moral or social status or virtue. Why? To ensure that
disputants are treated in the same way regardless of their character or worth, their
moral status, lifestyle or gender, ethnicity or religion. Judgement according to the
law therefore treats disputants impartially, not in the sense of taking no position on
the rights and wrongs of their dispute, but in the sense of taking no position on the
rights and wrongs of their character, commitments, moral standing, etc., except
when such considerations are relevant to the interpretation or application of the rel-
evant law. The general point here is probably that adjudicative outcomes ought not
to be determined by judicial empathy with the values, prejudices, principles and
conceits of heterosexual, white upper middle class protestant men, except insofar as
those values etc., are immanent within the law. And, if they are, that is legitimate
cause for regret and complaint from the perspective of most accounts of the values
that should or must constitute the law.36 (It is at this point that an overlap between
procedural and outcome impartiality is most pronounced, since a procedural
requirement that judges decide cases only by reference to the law can throw into
relief the moral quality of the law and its underpinning values.)
Within the legal context procedural impartiality is a complex and rich idea
which nevertheless significantly overlaps with our ordinary, non-legal under-
standing. While the core idea of procedural impartiality in law is participation,
that idea derives content from the expectations of those subject to adjudicative
procedures. Indeed, those expectations are often translated into duties binding
upon judges and other operators, appliers and interpreters of adjudicative proce-
dures. Of course, not all judges’ duties of impartiality are derived from the
expectations of disputants: some such duties are simply the product of our legal
and political culture and are binding upon judges whether subscribed to by dis-
putants or not. Furthermore, even those duties that do resonate with disputants’
expectations are not binding solely because of that resonance, but because they
are again features of that background culture.
36
One such perspective is that of ‘public reason’. Philosophers have raised a family of conceptions of public rea-
son, two of the most interesting belonging to G. Gaus, Justificatory Liberalism (Oxford: Clarendon Press, 1996) and
J. Rawls, Political Liberalism (New York: Columbia UP, rev. edn, 1996) and ‘The Idea of Public Reason Revisited’
in his The Law of Peoples (Cambridge, Mass.: Harvard UP, 1999). The conceptions are similar in that they tell us
which considerations public decision-making bodies like courts and legislatures should and should not use.
3. Impartiality: Neither Possible Nor Virtuous?

Impartiality as ordinarily understood has at least three features: it can relate to
issues of attitude and role, to the outcomes of decisions and to the processes by
which decisions are made. Each feature also has resonance within the legal con-
text, although the first and third are formalized to a far greater extent there,
while the second is present in only a limited way. That limitation is significant
and unavoidable, the moral being that it is folly to expect any rule-interpreter
(judge, referee, umpire, mediator or whatever) to be uncommitted to the rules
they apply, and folly for participants (players, disputants, plaintiffs or defend-
ants) to complain about being subject to the rules that define the practice in
question. Rule interpreters can be impartial only within the context of the rules
they apply and not about the rules they apply. While this point serves as a pro-
phylactic against the mistake that impartiality in adjudication is impossible
because judges uphold the law and its values, it does not protect against another
argument that casts doubt on the possibility of impartiality in adjudication. This
argument claims that the idea of equality of impact, which is the fulcrum of both
procedural and outcome impartiality, cannot be realized. The roots of this argu-
ment are diverse but rest in what could be called a general critique of the formal-
ity or abstraction of law.
A. The Impossibility of Equality of Impact

‘[A]bstraction is an ideology as much as a fact, and what matters is what gets
abstracted and how’
N. Lacey, Unspeakable Subjects (1998), p. 200.
How can adjudicative procedures and outcomes impact to exactly the same
degree upon disputants when it is obvious that those disputants, taken in all
their rich particularity, are very different from one another? Treating human
beings equally in some respect is to treat them as being exactly the same in that
respect. This, as an old lesson from Karl Marx makes clear, is a recipe for une-
qual treatment, if human beings are indeed different in other respects:
[t]he right of the producers is proportional to the labour they supply; the equality con-
sists in the fact that measurement is made with an equal standard, labour. But one man
is superior to another physically or mentally and so supplies more labour in the same
time, or can work for a longer time; and labour, to serve as a measure, must be defined
by its duration or intensity, otherwise it ceases to be a standard of measurement. This
equal right is an unequal right for unequal labour. It recognises no class distinctions,
because everyone is only a worker like everyone else; but it tacitly recognises the une-
qual individual endowment and thus productive capacity of the workers as natural
privileges. It is, therefore, a right of inequality, in its content, like every right. Right by
its nature can exist only as an application of an equal standard; but unequal individuals
(and they would not be different individuals if they were not unequal) are measurable
by an equal standard only insofar as they are made subject to an equal criterion, are
taken from a certain side only, for instance, in the present case, are regarded only as
workers and nothing more is seen in them, everything else being ignored. Besides, one
worker is married, another not; one has more children than another, etc., etc. Thus,
given an equal amount of work done, and hence an equal share in the social consump-
tion fund, one will in fact receive more than another, one will be richer than another,
etc. To avoid all these defects, right would have to be unequal rather than equal.37
The moral of this story is surely a general one and poses a significant difficulty
for the idea of equality of impact. Since it seems simply undeniable that dispu-
tants differ from one another in multitudinous ways, that they are in a vast
number of senses differently and unequally situated, then the prospect of any
procedural rule or outcome effecting them to exactly the same degree is unlikely.
The rule or decision in question would have to reflect these myriad differences
and, if they are infinite, then that is impossible. The standard way in which mod-
ern law responds to this difficulty is by ignoring most of its subjects’ particulari-
ties: the subjects of the law are treated as abstract and equal bearers of rights, the
capacity to bear rights being a function of both personhood and citizenship.
They are not often treated as the particular agents they actually are, in all their
rich subjectivity, difference and particularity, occupying diverse roles and con-
texts.38
While the precise contours of the abstract legal subject are uncertain, there is
no doubt that it is abstract and only becomes endowed with the characteristics of
actual disputants, or placed in something like the disputants’ actual situation,
when legal doctrine requires this.39 The abstract legal person is, then, in some
situations, endowed with the characteristics of reasonable teenage children,
glue-sniffers or other aspects of actually existing persons’ characters or situa-
tions.40 At some points, the law departs from abstraction altogether, such as at
the sentencing stage in criminal law, when the actual situation of the accused,
and some of his actual traits, are examined in order to determine an appropriate
penalty.41 In these circumstances, it is appropriate to speak of the law accommo-
dating or taking account of some, but clearly not all, of the disputants’ particu-
larities and differences and their situation or context. Yet it is only when the
abstract legal person is regarded as the subject of the law that equality of impact
makes most sense. If the law, in both its procedures and outcomes, treats all
37
K. Marx, ‘Critique of the Gotha Programme’ in Vol. 24 Marx-Engels Collected Works, 1874–1883 (London:
Lawrence and Wishart, 1989) at 86–87.
38
‘All concrete peculiarities which distinguish one representative of the genus homo sapiens from another dissolve
into the abstraction of man in general, man as legal subject’: E. Pashukanis, Law and Marxism: A General Theory
(London: Pluto Press, 1983) at 113.
39
For an interesting recent discussion of legal personality see N. Naffine, ‘Who are Law’s Persons? From Cheshire
Cats to Responsible Subjects’ (2003) 66 Modern L R 346–67. As will be obvious from what follows in the text, my view
of the abstract legal person is that it is a combination of what Naffine distinguishes as conceptions ‘P2’ and ‘P3’.
40
See, for example, Mullin v Richards [1998] 1 WLR 1304 (tort of negligence); D.P.P. v Camplin [1978] 2 All
ER 168 and R. v Morhall [1995] 3 All ER 658 (provocation defence in murder).
41
N. Walker and N. Padfield, Sentencing: Theory, Law and Practice (London: Butterworths, 2nd edn, 1996), ch 2.
disputants and citizens as the same—as being abstract and equal bearers of rights—
then it is not difficult to ensure that it affects all disputants in the same way.
Indeed, if all abstract rights-bearers are equal before the law, none being treated
differently on grounds of wealth (or lack of it) or status (or lack of it), or other
such factors, then equality of impact seems assured. It might, however, be prac-
tically difficult to achieve within actually existing legal systems because these sys-
tems display a near constant process of mediation between the abstract legal
person and the features—of character or context—of actually existing persons
that particular legal doctrines regard as significant.
Now the characteristics of the abstract legal person, such as they are, and the
traits of actually existing disputants and those aspects of their situation and cir-
cumstances that are regarded as relevant in the application of some legal doc-
trines, must be constantly kept in view. They must be subject to evaluation along
at least two dimensions. First, the abstract legal person must not become too like
an actually existing class of person. It must not, either overtly or covertly, take
on the characteristics of, for example, white middle class professional men, since
non-members of this group could well be disadvantaged by laws premised upon
these characteristics. Second, the process of contextualizing or situating the
abstract legal person that is required in some legal doctrines must be cognisant
of the risk that some aspects of context or situation might be class or gender or
race or sexuality or ability specific. Applying legal doctrines on the basis of such
group-specific contextual factors can easily disadvantage those who are outwith
such groups. The monitoring and evaluation of the abstract legal person is an
important feature of some gender critiques of law which have persuasively
shown that the abstract legal person looks suspiciously like a man or embodies
mainly masculine characteristics and values. Women before the law can there-
fore be disadvantaged by its use. Many gender critiques of the law have also
examined the aspects of context or situation which are relevant to the applica-
tion of legal doctrine and into which the abstract legal person is sometimes
transplanted. They have shown, again persuasively, that that these, too, disad-
vantage women before the law, since in the main the law recognizes only mascu-
line contexts and situations.42
These critiques sometimes blend into attacks upon the notion of impartiality. It
is suggested, for example, that impartiality is a purely male notion or that the
conception of a human agent impartial about everything that might constitute a
valuable human life is in some sense masculine.43 The latter criticism, as should be
clear from the arguments in Parts I and II above, relies upon a crass misre-
presentation of what impartiality involves. The former criticism, too, is both
42
An excellent introduction to and review of the literature is Lacey, above n 5, ch 1 and chs 5–7. See also
S. James and S. Palmer (eds.), Visible Women (Oxford: Hart Publishing, 2002), chs 2, 3 and 5 and M. Moran,
Rethinking the Reasonable Person (Oxford: Clarendon Press, 2003). A broader discussion is provided by M. Minow,
Making All the Difference (Ithaca: Cornell UP, 1990).
43
See Rackley, above n 5 at 602–05.
misguided and dangerous insofar as it implies that impartiality, in the sense in which
it must be understood, is beyond female cognition. That women judges appreciate
the importance of impartiality in some contexts is not, of course, a conclusive
rebuttal, since they might in the course of judging have simply adopted masculine
ways of thought. Yet in the absence of an argument demonstrating the exact nature
and power of these ways of thought, it suggests that both women and men can
recognize that impartiality is important in some contexts and in some aspects of
their lives. Indeed, it may well be the case that in many gender critiques of the law
and the abstract legal person, impartiality is a red herring. For it is not that notion
itself, properly understood, that is an appropriate object of criticism, but some of
the values that the law and the abstract legal person embody: values, as these gen-
der critiques have shown, that benefit one group (men) and disadvantage another
(women) in our community. Impartiality itself is surely not the problem here: the
worry is about the (value) company it keeps. If that company is objectionable—and
many gender critiques of the law suggest it is—then that must be pointed out. But
this cannot serve to discredit impartiality completely, since its occasional presence
in bad company provides insufficient warrant for that judgement.
Within the law, then, equality of impact means equal effect upon abstract legal
persons occasionally endowed with the characteristics of actual or reasonable
persons, or placed within the situation or context of actual or reasonable per-
sons. Which characteristics and aspects of context or situation are taken into
account is a significant matter and must be subject to critical scrutiny. Some
may, however, eschew this in favour of rejecting the idea—equality of impact—
that makes it necessary. The process of mediation between abstract legal person
and actual human characteristics, or between abstract legal person and aspects
of actual disputants’ situation or context that some legal doctrines make signifi-
cant, might be thought over complex and unnecessary, especially if the idea of
equality of impact is itself flawed. One particularly interesting alternative to the
currently dominant combination of equality of impact and the abstract legal per-
son in our law is found in difference feminism’s efforts to accommodate and elu-
cidate particularity. Can the insights of difference feminism provide a better
basis for judges and the law to judge us than formal equality and the abstract
legal person?
This question is difficult and not only because of genuine doubt as to whether
or not there is a unitary body of ideas that can properly be subsumed under that
rubric. The sources upon which some difference feminism draws are sometimes
oblique, it being a task of some complexity simply to elucidate the claims being
made, never mind evaluate how they might be defended. Some diligent scholars
have, however, undertaken this work and it is sensible, for current purposes, to
rely upon their accounts of the tenets of difference feminism.44 One such tenet is
44
See the sources in n 42, above, and, for example, Cornell, Philosophy of the Limit, above n 4. Cornell’s views and
her sources of inspiration have not remained static: compare the above text with At the Heart of Freedom (Princeton:
Princeton UP, 1998).
that normative thought and practice, including morality, politics and law, ought
to be open to otherness, to embody ‘the ethical relation’. The latter is, in part,
the ‘aspiration to a non-violent relationship to the Other, and to Otherness more
generally, that assumes responsibility to guard the Other against appropriation
that would deny her difference and singularity’.45
A standard way in which law denies difference and singularity is through the
abstract legal person. But, as already noted, some legal doctrines mediate or
leaven this conception with the characteristics of actual or reasonable persons or
by situating it within the context of actual or reasonable persons. Difference
feminism’s critique of the abstract legal person must, then, register its complex-
ity in practice while criticizing its contours. The latter criticism is in part a cri-
tique of those improperly masculine legal values embodied in the abstract legal
subject. Yet when the critique goes beyond this point problems arise, one of
which is this: it is prima facie difficult to see how a broad and deep sensitivity to
difference and singularity could ever be compatible with law as currently known
and experienced.46 Law is, after all, a blunt instrument that, through the abstract
legal person, views all legal subjects as more or less identical. At this point the
strand of feminist critique already noted strikes, for it must never be assumed
that, in regarding legal subjects as in some ways identical, the law and the
abstract legal person are therefore non-discriminatory, gender or race or class or
sexuality neutral. But, while remaining vigilant about this dangerous assumption,
it has to be recognized that, through the medium of particular legal doctrines,
there are undoubtedly pockets of receptivity to difference and particularity in the
law. The question for difference feminism, then, is whether its critique of law
can go beyond the point of policing the contours of, and values assumed by, the
abstract legal person. For it is an open question whether or not law, as we cur-
rently understand and experience it, could conceivably go beyond this always
halting and incomplete recognition of difference and singularity while still remain-
ing a distinct form of social regulation. Indeed, the attempt to embody the ethical
relation in law might actually turn out to simply replace law with the kind of ethical
sensitivity and ordering that should characterize intimate relationships of partiality
and almost unlimited mutual concern (between lovers, siblings, parents and chil-
dren, etc.).47 It is not clear that this is actually possible but, even assuming it is, it
is not obvious that it would be entirely beneficial, especially if law in its current
form has some virtues. Either way, it is far from obvious that we have here a supe-
rior alternative to equality of impact and the abstract legal person.
45
Philosophy of the Limit, above n 4 at 62.
46
For an altogether more subtle account of some of the difficulties, see the essay by Lacey in James and Palmer
(eds.), above n 42, particularly at 129–33.
47
It is not only some strands of difference feminism that hint at this ‘reinvention’ of law. Some of the most inter-
esting British critical legal theorists, like A. Norrie, also lean in this direction. See my book review in 19 (1999)
Legal Studies 425–29 and A. Norrie, Punishment, Responsibility, and Justice (Oxford: Clarendon Press, 2000) at 231–
35 for his reply.
B. Is Impartiality a Virtue?
Are there any grounds for thinking that impartiality in adjudication, even if pos-
sible and realizable, is a virtue? Showing that, as deployed in the legal context,
the idea of impartiality overlaps with our common sense expectations and intui-
tions tells us nothing about the value of the idea. Furthermore, since our gen-
eral, non-legal understanding of impartiality shows that the idea is not
ubiquitous—it is not important in each and every or even many contexts—its
supposed value in one context will not easily be transferable to another. If it is a
virtue, it is so only in certain specific contexts and only when certain other con-
ditions obtain. Impartiality is therefore unlike some morally thick notions such
as integrity or authenticity, since it is in no sense important in most or even
many aspects of our lives.
Moreover, whatever value impartiality might have within a legal system seems
to be mainly derivative, which is to say that much of its value flows from the
value-company it keeps. Alternatively, and somewhat mysteriously, little of the
value impartiality has here seems to be inherent. This becomes clear if we imag-
ine a generally morally abhorrent legal system that nevertheless contains traces
of either procedural or outcome impartiality. The value those traces might have
will surely be close to but probably not exactly zero. Subsidiary values like
impartiality—and, perhaps, those embodied in good manners and etiquette—
can still have some weight, still enable something to be said in their favour,
even in the face of moral horror. But the weight of what can be said is surely
very slight in such a context and even giving it expression can seem odd: the
good manners of a death-camp guard or an assassin, while indicative of some
degree of humanity, are of little value in morally horrific circumstances. In a
politically or morally respectable legal system, by contrast, impartiality becomes
an important and desirable component which will take its place alongside, and
derive much of its value from, other generic rule of law values. The point here is
a general one about our values, namely that some are more important than oth-
ers and those of subsidiary importance derive much weight from their weightier
peers. Some values, among which we must include impartiality, ‘by season
season’d are’.48
A thorough examination of impartiality in adjudication would consider its
value, such as it is, in comparison with those other values that this means of
dispute resolution allegedly embodies. This would be a complex but possibly
valuable task, since a non-reductive articulation of the schema of values, their
inter-relation and their relative weight, that adjudication might embody would
throw light on this particular social form as it currently exists and, by extension,
perhaps upon our understanding of law itself. At a time in which some think law
and adjudication are displacing politics as a means of making collective decisions,
48
W. Shakespeare, The Merchant of Venice, V, 1.
this task seems particularly pressing.49 What has actually been provided here is,
by contrast, an embarrassingly modest argument about the value of impartiality.
It is nevertheless reasonable to rest content with it for now, since our principal
task was to show that the idea is possible: that it is both intelligible and in some
sense realizable. The very fact that impartiality plays an intelligible role in some
contexts and can, in the right circumstances, be considered a virtue, at least
shows, contrary to the views of some, that it is neither mythical nor impossible.
The mundane task of this essay has been to show that, as Marcia Baron sug-
gested, impartiality is not always a bad thing and that, in adjudication as else-
where, impartiality exists in a context of partiality, as Jeremy Bentham long ago
perceived.
49
See, for example, M. Tushnet, Taking the Constitution away from the Courts (New Jersey: Princeton UP, 1999)
and the essays in Part II of T. Campbell and J. Goldsworthy (eds.), Judicial Power, Democracy and Legal Positivism
(Aldershot: Dartmouth Publishing, 2000).

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Oxford Journal of Legal Studies, Vol. 25, No. 1 (2005), pp.

The Possibility of Impartiality

‘[N]o one claims impartiality is invariably a bad thing’

Abstract—This essay offers a general account of the idea of impartiality and

collection of seemingly inescapable or necessary protocols—including the rules of

A. Attitude and Role

The partiality of adjudicative outcomes is, it seems, at least double-edged.

3. Impartiality: Neither Possible Nor Virtuous?

A. The Impossibility of Equality of Impact

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