How Shall We Apply the Law? Urging Judges to Use Expertise Evidence

How shall we apply the law?

Before interpreting the law, the first thing for judges to do is to identify the fact of the specific case. However, in the cases involving scientific and complicated factual contexts, how can we ensure that judges fully understand the factual context of the case they are going to apply? Apart from the United States, if we observe the educational backgrounds and the approach most of states use to train their judges, you would find that most of them lack the professional backgrounds other than law, it is obvious that they are not economists when facing anti-trust litigations and they are not scientists when they are requiring to determine whether the food safety standard is scientific-based or high enough to protect human health. Therefore, my first question is how we can ensure that judges fully understand the facts what they are going to make decisions without consulting the experts.

Subsequently, when we are interpreting the law, usually two common methods we would employ to explain the law: the first is literal approach and the second is purposive approach. They are commonly used both in interpreting national laws and international laws. The first approach is often to be used as the starting point. We are trying to realize what the law-makers mean by directly reading the texts. Indeed, people shall be bound by the laws they can understand through directly reading the texts and realizing the ordinary meanings of the texts. It is also one way we use to strengthen democracy. In addition, in some international litigation practices, the Appellate Body even chooses Oxford Dictionary as the guideline to find the ordinary meanings of the texts. Also, it is rational to use some professional dictionaries in some professional fields when interpreting the professional terms in the same fields like natural monopoly or . Therefore, even in the literal approach, when facing some professional key words, we would need to read some specific professional dictionaries and again those professional ones are written by the experts.

Then, you may wonder how about the purposive approach? Is it more reliable for it to play as the guideline when we facing two different and conflicting interpretations from one legal text through the literal approach? Some would claim that, normally there are two or even more purposes found in one statute, and sometimes it is even worse when those purposes are conflicting and no one can be seen as the predominant one by conducting the test of center of gravity.

Indeed, those doubts are convincing. However, if the legal system would like to survive in the whole society, it shall function well and gain the supports by obtaining the goals pursued by the legislators. Otherwise, why shall we be bound by the meaningless law? Therefore, it is necessary to evaluate the law by examining whether the law has obtained its goals or purposes. By the same token, when judges are applying and interpreting the law, they cannot ignore its purposes. Instead, they shall take the purposes as the guideline when facing the different explanations or even ambiguous legal texts. Here, again, we will encounter the similar challenge as we meet in the situation of the complicated facts, how can we ensure that judges fully realize the goals/purposes/polices pursues by the legislators? To note, here we are not going to challenge whether the policies embedded in laws are appropriate. We do not want to break the classic principle of powers separations in this paragraph. Nevertheless, what we doubt is whether judges fully realize the policies behind the laws they are interpreting. Would this situation become better when they determine to consult with the experts in the proceedings of the court?

 If we cannot deny the truths that sometimes either facts or policies shall be explained by the qualified and neutral experts before the court, we shall suppose that judges shall frequently use them in the real world, isn’t it? The reality is completely depressed. The literatures show that in most of cases before the ECJ, judges are reluctant to use the expertise evidence. They sometimes even rejected the experts brought by parties or denied the conclusions of some studies without giving the reasons. Some professionals feel that they are living in the blind world when presenting in the litigation proceedings. The legal norm gives judges a lot of room and discretion to decide whether they want to hear the expertise evidence in the proceedings, and if they want, whether they prefer to appoint the neutral experts on their own or to hear the experts brought by the parties. Nevertheless, at least, in some cases they shall hear to either neutral experts or partial experts, in order to ensure that they fully understand some complicated facts and some professional goals (for instance, to what extent shall human tolerate the specific toxin).

The following paragraphs have not completed yet. We would like to first analyze the reason why judges are reluctant to use expertise evidence, and second we will find the way to remedy the so-called professional deficits. Is it better to create a special court like IP, Trade or Maritime courts equipped with judges having the specific knowledge or background? Or the fundamental way is to design a regime of using of expertise evidence to urge, encourage, or even force judges to use.