“There is a certain randomness about judgments and verdicts”

The scope for interpreting a law is often massive, explains Martino Mona. The Professor of Penal Law at the University of Bern is convinced that prejudices and personal attitudes also play an important role in court rulings.

Mr. Mona, what is the basis judges use to decide on a case?

Martino Mona: The facts of the case are the basis, and this basis is typically already established in court. The question then is which rule of law is applicable to the case.

On what other factors does the decision-making process depend?

The facts and, above all, the laws are often unclear. We know roughly what happened and which law might be relevant. But whether one really suits the other is largely an open question. Interpretation often plays much more of a role than laypeople might typically imagine. A legal provision can be interpreted in different directions, many factors play a role.

What are these factors?

The ideological and political convictions of the judges, their moral attitude, the way they feel any one particular day, the way in which the proceedings were conducted. To believe that the law and the court system can eliminate these factors is naive. It is much more honest and correct to accept that judicial decisions are personal decisions that could be different in another court.

And what does that mean?

It means that judgments and verdicts always have a certain randomness. If laws were absolutely clear and did not have to be filled in or comprehended by judges with their own understanding, the various levels of jurisdiction would also be superfluous. Everyone would always make the same decision.

Are some verdicts wrong?

It’s not like one court decides incorrectly and the next court makes the correct decision. One court simply gives more weight to a specific aspect than another does. There are clear errors of judgment, but they are rare. What is really controversial is that making a judgment based on laws is not at all precise or calculable. There is no law that is so clear that there is no room for maneuver or different interpretations. If that were the case, there wouldn’t be any litigation.

What kind of cases are particularly difficult to decide?

You might think that is the case with complex cases. But even the most trivial standard carries enormous potential for confusion and difficulties. I often give my students a simple example: There is a sign in the park saying that dogs must be kept on a leash. Now you think this is a clear statement. But this is where the greatest quarrel can break out. After all, what can we do if there is a person in the park with a dog that they keep on a 300-meter-long leash, so the dog is free to walk around the park and the owner has no control over it? We would then say that that is not what the regulation means. But the dog owner would reply that the sign does not say how long the leash has to be. We then have to discuss whether a 300-meter leash can fulfill the purpose of the regulation – and then we argue about what exactly the purpose of such a standard is. The standard itself does not detail that.

“We cannot help but judge politically and ideologically.”

Martino Mona

Can you take this example to the next level?

Yes. What if someone comes into the park with a leopard? Does he have to be on a leash, too? Of course, leopards are more dangerous than dogs, and the leopard needs to be kept on a leash. However, the counsel for the defense of the leopard owner says: How is my client supposed to know his leopard has to be kept on a leash? It just says dogs have to be on a leash. And what about a marten? And then there is a dog walking around the park freely, but it is blind, has only three legs and no teeth at all … as you can see: It can blow up in all directions. The law is, I almost have to say unfortunately, defined in words, and words are imprecise, flexible and ambivalent. Language only indicates what might be meant and provides no protection against mistakes in thinking. When several laws and overlapping areas, such as civil and penal law, come together, this effect is even more pronounced.

Do you have any specific advice on how to pronounce as objective a judgment as possible?

There are many people, even in legal professions, who do not want to admit that the law is diffuse, ambivalent and complex. The moment you realize this, a process of critical questioning automatically begins. My first tip is to accept that laws are unclear. Moral education and experience also help people to question their own prejudices and attitudes.

Every judge brings personal attitudes to a case.

And if you didn’t have your own values, you wouldn’t be able to judge a case. We cannot help but judge ideologically and politically. But in the end, you have to ask yourself: “Did I judge the case in that particular way only because I used certain selfish preferences or reprehensible criteria that I shouldn’t use? Would others have made the same decision?” This mechanism helps to reduce unfair prejudices of a selfish nature.

How objective can experts be?

Unfortunately, there are experts who overestimate their abilities. The main problem is that they assume that they are less susceptible to cognitive distortions. That promotes unfortunate judgments. For example, experts must assess the probability of a relapse. You have to think speculatively about the future. However, people are very bad at estimating probabilities. If you admit that to yourself, you can judge a situation better. But many experts find it hard to admit this to themselves. A form of narcissistic delusion.

In some countries, judges are not allowed to belong to a political party. Anyone in Switzerland who wants to become a judge, actually has to join a party. What impact does this have on their decisions?

This peculiarity is an admission of the fact that the courts in Switzerland naturally also have to judge politically. That is the purpose of our system. The general political situation needs to be depicted in court. The law specifies the outermost limits. But between these boundaries there is sometimes a great deal of room for political and moral decision-making.

Belief in the correctness of a verdict is high among the population. Is this justified?

It is justified if the trial takes place as I just described. It is important that there is openness, space for correction and exchange. The public should see that disputes take place in court and that different positions are possible. Rigid thinking harms a fair judgment much more than allowing doubt and allowing correction. It is important that, at the end of a trial, all those involved feel that it has been a fair dispute.

About the person

Martino Mona

is Professor of Penal Law and the Philosophy of Law and Co-Director of the Institute of Penal Law and Criminology at the University of Bern.

Decision for - or against - regret

It is impossible for him to cite one decision as the “best decision of his life”: None of them could have been foreseen to be the best decision; luck and chance usually helped them. Is there a decision he regrets today? Regret is meaningless and selfish – although when it comes to misconduct towards people, it is good and important. The question that Mona finds hard to decide every day is: to game or not to game?


Prof. Dr. Martino Mona, martino.mona@krim.unibe.ch

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This article first appeared in uniFOKUS, the University of Bern print magazine. Four times a year, uniFOKUS shows what academia and science are capable of. Thematically, each issue focuses on one specialist area from different points of view and thus aims to bring together as much expertise and as many research results from scientists and other academics at the University of Bern as possible.