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The Umpire as a Jurist; a jurisprudential analogy | The Leaflet

Role of a Judge

The Umpire as a Jurist; a jurisprudential analogy

Partiality and bias in judicial decision-making does not always manifest in overt forms. Often, the jurisprudential school judges subscribe to - whether naturalist, positivist or realist - shape judicial outcomes.

Arun Maaran

Published on: 12 August 2025, 12:08 pm

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The Umpire as a Jurist; a jurisprudential analogy

This article is the third article in the Role of a Judge series. Please click here to read the first and the second.

“Writers of the nineteenth and twentieth centuries had already come to the unremarkable conclusion that judges were human beings, and as such were subject to human prejudices”

— Charles Gardner Geyh

THE PRINCIPLE OF JUDICIAL IMPARTIALITY is a foundational pillar of any legitimate legal system. However, it is widely accepted that the pursuit of “absolute impartiality” is a chimera, an ideal that is perpetually sought but never fully attained.

As discussed in a previous article in this series – ‘Role of a Judge: When to recuse?’ – the most recognised threats to impartiality are bias and prejudice; both of which can subvert the adjudicative process. Partiality manifests in overt forms, such as political or financial interests, or in more subtle forms, such as cognitive bias or judicial nonchalance.

Alongside the above-listed influences, the very philosophical commitments of a judge—their school of jurisprudential thought—can structurally shape their reasoning in ways that lead to divergent, often partial, outcomes. In analysing another hurdle to impartial adjudication, this blog post examines the inherent tensions within legal theory.

The umpires tale

There is an old tale about three baseball umpires who were asked how they rule on a ball: the first said, “I call it like I see it”, the second, “I call it like it is”, and the third, “It ain’t nothin’ till I call it.”

This anecdote serves as a useful heuristic for examining the practical application of competing jurisprudential theories, emphasising the difference yet correctness of each view. The umpire, analogous to the judge, is expected to function as an independent and impartial third party. However, as the umpires’ divergent statements illustrate, the very nature of what constitutes an impartial and correct ruling is itself subject to his* own philosophies and predilections (albeit at times subconsciously so).

The three views espoused above represent the diverging approach of legal theorists who ascribe to the schools of natural law, legal positivism, and legal realism.

This introduces a significant tension with the ideal of impartiality, as the application of a higher moral code is necessarily filtered through the judge’s personal understanding of that higher code, making their moral convictions a central, and potentially contestable, element of their legal reasoning. It is unsurprising then that natural law theorists call it as they see it.

A seminal example of the application of natural law are the Nuremberg Trials held between 1945 and 1946. The International Military Tribunal, in rejecting the defence raised by the accused, applied principles of morality and justice premised on the belief that there are universal legal standards beyond national laws.

The main defences raised by the accused included:

(a) the actions were legal under Nazi law;

(b) the concept of crimes against humanity was not codified in international law; and

(c) the acts were direct orders from superiors in command.

These are underpinned by sound legal reasoning and may well have been accepted by a positivist. However, the Tribunal, in working backwards from administering its idea of ‘moral’ justice, rejected these arguments by reinforcing the rule that law must serve justice, not just adhere to precedent.

The Tribunal noted that “the true test… is not the existence of the order, but whether moral choice was in fact possible.” Consequently, in emphasising a moral dimension to legal responsibility, the Tribunal found that blind obedience to unjust orders, albeit those of a superior, is not a valid defence. The Tribunal also introduced the concept of crimes against humanity, opining that certain acts (like genocide and war crimes) are inherently immoral such that despite there being no explicit legal prohibition against them, they are ‘known wrongs’ and thereby punishable. The Trials are a quintessential example of the principles of natural law guiding judicial decision-making.

The application of a higher moral code is necessarily filtered through the judge’s personal understanding of that higher code. Their moral convictions become a central, and potentially contestable, element of their legal reasoning.

The infamous case of R v Dudley and Stephens (1884) is a classic example of legal positivism wherein the Court strictly adhered to black-letter law by explicitly dismissing considerations of morality or higher justice. Following a boat-wreck, four sailors were stranded at sea without any food or water. After days of starvation, two sailors decided to kill the cabin boy and feed on him for sustenance. When rescued, the two sailors were charged with murder, notwithstanding their plea of necessity. The Court emphasised that the law must be applied as written, without regard to factual circumstances or moral justifications. This case typifies the positivists principle that law is distinct from morality and must be enforced as enacted.

The realist: It ain’t nothin’ till I call it

“The law (or the Constitution) is what the courts say it is”

— H.L.A. Hart

The third umpire is an exemplar of legal realism as he believes that judges create new law through the process of interpretation. Realism outwardly accepts that “a judge is a man and not a syllogism machine: he judges by his intuition and his sensitivity as much as he does by his knowledge of [legal] rules and by his logic.”

This view accepts the significant level of judicial latitude vested in the judiciary and reverberates the sentiments of Justice Oliver W. Holmes that “the life of the law has not been logic: it has been experience.” Consequently, the judicial decision is not always a discovery of a pre-existing legal fact but the creation of one, an exercise of power that has a direct and formative impact on the interpretation of law and future precedent.

This is unique in that it allows for a formal departure from precedent, undermining the age-old principle of stare decisis. It is unsurprising then that this is most prevalent in the US judiciary whereas common law jurisdictions struggle given their excessive reliance on horizontal precedents. Realism propounds partiality to a greater degree where judges exercise excessive leeway in their decision-making and thereby have a significant influence on the evolution of precedent. The famous dictum of Chief Justice Hughes — “we are under the Constitution, but the Constitution is what the judges say it is”, echoes the statement that “it ain’t nothin’ till they call it”.

The landmark US case Brown v. Board of Education (1954) is an ideal example of legal realism as the Court, in striking down the ‘separate but equal’ doctrine, departed from precedent set out in Plessy v. Ferguson (1896) to create new law. The Equal Protection Clause found in the 14th Amendment to the US Constitution had existed since 1868.

In Plessy (1896) the doctrine of separate but equal was seen as constitutional. However, in Brown (1954) the same principle was seen as a violation of the Equal Protection Clause as “separate but equal was inherently unequal.”

This evolution in the Court’s interpretation is reflective of social realities, psychological considerations and liberalisation, which compels judges to not only apply the law, but, at times, to make it. Whilst a positivist may find segregation, insofar as it is equal, as legal, the realist, taking into account non-legal aspects, found segregation in itself as inherently unequal.

Realism propounds partiality to a greater degree where judges exercise excessive leeway in their decision-making and thereby have a significant influence on the evolution of precedent.