When Judges Disagree: Understanding Judges as Epistemic Peers

The ‘Epistemology of Disagreement’ (ED), now an established focus in epistemology, is concerned with the exploration of what one should do when one finds oneself in disagreement with a ‘peer’. This 'ED question' can be formulated as follows: where A and B are considered 'peers', and A and B come to different conclusions over X, should A (or B) alter their belief over X? Although the literature makes reference to law, notably disagreement in a jury, little has been done by way of employing ED to inform or develop our understanding of disagreement in the legal sphere. This paper seeks to bridge this gap by utilising disagreement between judges as a case study for ED’s application. The presumption that judges are peers in the legal hierarchy, coupled with the arguable nature of legal cases, makes disagreements in judicial decisions of great importance to society, and an excellent test for ED theory. I begin by outlining ED’s fundamental principles; what a peer is, the instances of disagreement utilised, and the main posited answers to the 'ED question'. Through application to judicial disagreements, I demonstrate significant limitations of the literature. Specifically, it is argued that the construction of ‘peer’ advanced by ED is problematic for a robust application to law. However, through an exploration of ED limitations I argue that we can come to better understand the nature of disagreements in courts, their significance, and the role they can play in forming judicial precedents. In so doing, not only is pressure put on the idea that judges are ‘peers’, but, more significantly, whether it is in fact desirable that they are deemed so in the context of a socially unrepresentative court system.