June 24, 2019
THE Judicial and Bar Council recently interviewed—interrogated, to be more precise—candidates for the vacancy in the high court. Among the candidates is a good friend and colleague at the San Beda University Graduate School of Law, Jemy Gatdula. Jemy is well known for his opposition to same-sex marriage (even civil unions) and to the growing social approval of homosexuality. His dissertation for the doctoral degree in juridical science was on natural law and the Constitution, and he is convinced that he has natural law on his side. To be sure, his is a brilliant mind!
But Chief Justice Lucas Bersamin — Manong Luc — raised not a few eyebrows when he insisted: “A justice must be biased.” Of course, he discoursed on what he meant, but really, the Chief Justice was enunciating good philosophy, good hermeneutics. The unbiased mind, the tabula rasa, is one incapable of really knowing. It is simply inert, unable to arrive at insight. The hermeneutic circle, we have been taught for some time now, involves the processes of projecting meaning—anticipating, and one anticipates from previous experiences, from biases, in short—and then allowing the encounter with the reality to correct, modify, build on the bias. Being biased is having a standpoint, and it is impossible not to have one. What matters really is that one is able, eventually, to recognize one’s biases and to distinguish which prevent a richer, more inclusive view of things from one that, in Popper’s terms, is able to cope with and render coherent a more complex array of data.
A very simple example should make the point clear. A child who is raised to speak English has English as his bias, because English is not merely a set of words, nor a table of syntactical rules. It carries an entire world-view with it. Like all language, it mediates the real. So “girl” as against “boy”, “man” as against “woman” is the bias for binary thinking about persons. One is either a man or a woman. And when one deals with weightier terms like “God”, “democracy”, “justice,” then one should grasp just how much of the bias language itself already embodies. But there is no way of doing without language. All thought is linguistic, and all understanding takes place through language. The thought experiment of Wittgenstein is still good. There is no way you can think “Five hundred kilometers southeast of the northernmost point of Aparri” without words either said aloud or said to yourself. In Ilocano “nalabbaga” is red — and that covers every shade and hue around red. But when you use terms like “red”, “crimson”, “rust”, “scarlet”, “magenta” and myriad others, then you introduce a perceptual distinction that one does not appreciate, does not in fact see, when you have only “nalabbaga.”
“The cold neutrality of an impartial judge” — the proverbial description of the ideal judge does not mean the bias-free judge. In fact, the decision not to favor any party at the outset of the trial is itself a bias, and a most helpful one. It seems after all to be a natural tendency to be attracted to attractive people (physically as well as in demeanor and in speech) and to be repulsed by persons who strike us as repulsive. Against this tendency, the judicial bias is to favor none and to be inclined towards none before one has heard the evidence. But the appeal to bias should be as clear. In Dworkin’s model of rules, you simply do not have linear progression from issue to facts to law to judgment. The law is read in light of the facts and applied according to principles of equity — ultimately, one’s biases about what is fair.
In research, the researcher’s bias is given a critical look when he articulates his conceptual framework. That is the set of biases within which he works, and the examiner would be out of order who would demand that the researcher choose a different framework of reference. What can be rightly demanded of the researcher is the recognition of the limitations that a particular conceptual frame imposes. The Constitution articulates the biases of the Philippine legal and political order in its articulation of state policies and principles. While generally non-self-executory, these are the biases by which Congress must legislate, and courts interpret the law.
In the reading of the Constitution, in fact, different biases are maintained by the different schools that have arisen in constitutional theory. Some, like the venerable Antonin Scalia, are originalists: What did the text mean at the time that it was written? At the far end of the spectrum is the critical legal studies movement that debunks every pretense at textual objectivity and bluntly characterizes every judicial construction as the outcome of political bias. There is yet another school that maintains the bias in favor of coherence, so that no matter what the text may seem to say clearly, if the result is not coherent with the rest of the Constitution, then the construal must be otherwise.
Indeed, the process of human understanding seems to consist in the “fusion of horizons” — one starts from one’s biases but these are then diluted by what one encounters in the world and from others, and revisionism — the constant challenge to one’s biases and the willingness to get rid of those that stand in the way of a more satisfactory grasp of phenomena. And unpopular and distasteful as “postmoderns” may be to many, the fact is that essential to insight is the deconstructive moment by which one allows one’s biases to be challenged and to recognize that other standpoints are possible and should, at the very least, be examined.
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