Ideology in Law

By Nick Levinson

If law is applied, doesn’t that exclude ideology, e.g., political and religious leanings?

No.

It is impossible to promulgate law that would explicitly address every possible human decision or behavior. There will be some uncertainty left, not just among members of the public but among leading legal eyes, such as among adjudicators and legislators.

Politics trumps law no matter how comprehensive law tries to be, and many say that religion trumps politics. Since law cannot be completely comprehensive, complete conformance to all law still leaves openings for political and religious disagreements and decisions to shape applications of pure law. This applies as well to the promulgation and discovery of law by courts.

Judges don’t say this, but that’s because the public wants law to be applied without ideology and looks to judges to model legal purity, so judges speak without admitting to the role of ideology in law, deferring to legislators and other politicians on politics. Lawyers who practice before adjudicators, and that’s most lawyers, conform to this view as well. None of this denies the ability of others of us to see and communicate this ideological role.

In the U.S., that people become judges by the political decisions of politicians adds to the role of politics in the application of law.

This arrangement has the support of most of the public, that support manifested in the public’s mostly leaving acquitted defendants alone, even defendants who were widely and deeply infamous before acquittal, and the public’s mostly accepting the policy decisions of the courts, especially noticeable for published decisions from the U.S. Supreme Court that are accompanied by opinions of the judges (in that court, justices) explicitly stating legal grounds.

Politics and religion, at some level, drive everyone. This is also so of other major ideological domains, such as economic views and art. Being an adjudicator doesn’t change our drives. Therefore, their adjudicatory decisions inevitably include ideological elements.

Adjudicators create precedents for the rest of us to apply in our daily living. So, their ideologies, along with our own, are part of what we must obey. Balance may arguably be possible, depending on what is to be consiodered for balance, but neutrality is impossible.