Courts and expertise: Consequence-based arguments in judicial reasoning

If in deciding a case, the judge finds that the applicable legal rule has more than one plausible interpretation, the judge is said to use a consequence-based argument if she justifies her decision for a particular interpretation with the argument that this interpretation will bring about consequences which are normatively superior to the consequences brought about by alternative interpretations. A paradigmatic case of consequence-based reasoning is when a judge chooses the alternative which is expected to maximise social welfare. Looking at the role of consequence-based reasoning in the canon of acceptable arguments in the main European jurisdictions and in the United States, under different names and with a varying degree of openness, one finds that most of these legal systems allow for consequence-based considerations. This chapter analyses consequence-based arguments in judicial reasoning from a jurisprudential perspective. The conceivability, feasibility and desirability of the judicial appreciation of general social consequences of legal decisions are considered in turn. When courts attempt to justify their decisions with reference to expected consequences, serious problems emerge. The chapter argues that these problems are closely linked to a multi-faced (technical, institutional and normative) feature of adjudication: the competence of courts. The epistemic capacities of judges as ‘intuitive experts’ and the institutional setting of adjudication in a constitutional democracy make it rather unlikely that judicial decisions meet the standards of empirical testing and rationality that characterise impact assessments in legislative and administrative contexts.