Judge Fukal instead of experts? When judicial judgment begins to replace expert experts

There is a particular and little-discussed danger of judicial power. It does not necessarily lie in corruption, political pressure or open arbitrariness. It is much more subtle. It arises when the boundary between legal assessment and expert knowledge begins to blur and the judge gradually becomes convinced that a question addressed to a psychologist, psychiatrist, doctor, technician or other specialist can be solved by a sufficiently convincing judicial reasoning. It is precisely this problem that is vividly opened by the judgment of judge Mgr. Jakub Fukal from the District Court in Nymburk. It is not just one judgment and one judge. Rather, Foucault's case is an illustration of a more general question: where does the legitimate free evaluation of evidence end and where does the dangerous illusion that the judicial function confers universal expertise begin?

A judge is an expert in law. That is his basic role. They must understand legal norms, procedural rules, evidence, argumentation, decision logic and constitutional limits of public power. However, he is not automatically a clinical psychologist, psychiatrist, construction expert, neurologist, genetic expert or forensic specialist. This is precisely why the legal system knows the institute of the expert. Not as a decoration of court proceedings, but as a procedural tool for situations where the decision depends on facts, the correct assessment of which exceeds the ordinary knowledge of the court.

And this is where the problem arises. If a judge begins to label an expert question as unnecessary for an expert assessment, but subsequently resolves it himself in the judgment, a paradox arises that goes beyond the specific court case. Either the question requires expertise or it doesn't. If its solution is so simple that it can be reliably evaluated only from witness statements and documents, there is no need for an expert. However, if another court in a related proceeding appoints a psychiatrist and a clinical psychologist, instructs them to examine the parents and children and ask them questions about the causes of the disruption of family relations and about the possible influence of the child by one parent against the other, it is difficult to simultaneously claim that the same area can be safely resolved in another proceeding by mere judicial judgment.

It is precisely in this that Judge Fukal's case is interesting as a more general warning. In the related guardianship proceedings, the experts were ordered to assess the specific causes of possible disruption of the children's relationship with their parents, as well as the question of whether the children are being influenced by one of the parents against the other. These are not legal questions. These are questions of psychological dynamics, child development, loyalty, family conflict, and causality. Nevertheless, Judge Fukal's judgment shows his own conclusions about what factors influenced the relationship, what the children derived their attitudes from, and that their negative attitudes were not the result exclusively or mainly of the mother's influence. In the same decision, the court called a broader expert examination of the relationships superfluous. This contradiction is more important than the personal dispute of its participants.

A dangerous kind of epistemological power can very easily be born in the courtroom: the court not only decides what is legally valid, but begins to feel that it also knows for sure why people behave, how they behave, what the child is really experiencing, why he changed his relationship with his parents, how significant a certain influence was and what an expert would probably find anyway. At that moment, legal authority becomes omniscient authority. And this is where the rule of law gets on thin ice.

At the same time, the greatest danger is not even an erroneous expert opinion. This can be questioned, supplemented, compared with another opinion, an expert can be heard and his method checked. It is much more difficult to argue with the expert-sounding judge's reasoning, which formally appears as an "evaluation of the evidence". After all, who determines where the judge still evaluates the evidence and where he actually practices psychology without a psychologist? Where does he only interpret the child's statement and where does he already infer the mechanism of the formation of his personality? Where does he state the sequence of events and where does he begin to determine their psychological causality?

This problem is not limited to family law. It can arise in the same way in a medical dispute, where the judge begins to assess the cause of the treatment complication himself. In construction management, he can "logically" deduce the cause of static failure without a specialist. In a labor dispute, he can assess medical fitness himself. In criminal proceedings, he can determine the mental state of the accused based on the impression. In a dispute over electronic data, he can decide what is technically possible and impossible without an expert. As soon as this way of thinking becomes normalized, the expert becomes an optional prop from a procedural safeguard: we use him when his expertise is useful, and put him aside when the court already has its own explanation.

But judicial independence does not mean professional omnipotence. Independence protects judges from outside interference in decision-making. However, it does not give him license to go beyond the boundaries of his own expertise. On the contrary, a truly professional judge must be able to recognize the moment when law ends and medicine, psychology, economics or technology begins. Admitting that a question needs to be evaluated by an expert is not weakness. It is a manifestation of competence.

It is for this reason that Judge Fukal's case can serve as a useful symbol of a wider problem. This is not to say that every factual conclusion of his must necessarily be wrong. This can be reviewed by the Court of Appeal. The method is more important: the court knew that an expert psychological and psychiatric examination was taking place in the related matter, it knew its focus, yet it also based its own judgment on conclusions that overlap significantly in content with the questions asked to the experts. This is exactly the moment when the public, lawyers and the judiciary itself should be extremely attentive.

The judiciary has something that no expert has: the authority of the state. An expert can write an erroneous opinion and the court can reject it. However, when a judge inserts his own professional-sounding reasoning into a judgment, it becomes part of a state decision and can directly affect a person's family, property, professional life or reputation. This is precisely why the line between legal and professional judgment must be guarded more strictly, not more loosely.

The robe is not a universal diploma. The courtroom is not a laboratory, and the judicial experience is not a psychodiagnostic method. A judgment may have the authority of law, but it cannot turn a layman's guess into expert knowledge by mere pronouncement. If we forget this simple principle, the judiciary can begin to subtly change from an institution that makes decisions on the basis of expertly established facts to an institution that considers its own convictions to be a sufficient substitute for knowledge. And that is where the real danger begins: not the judge who is wrong, but the judge who no longer needs to know, because it is enough for him to make a decision.

Resources:

1. Act No. 99/1963 Coll., Code of Civil Procedure, especially § 127 – proving facts requiring expert knowledge. Available from:Act No. 99/1963 Coll.

2. SUPREME COURT OF THE CZECH REPUBLIC. 2001. Judgment of 2 April 2001, file no. stamp 22 Cdo 1599/99. Available from:22 Cdo 1599/99

3. CONSTITUTIONAL COURT OF THE CZECH REPUBLIC. 2016. Finding of 26 July 2016, file no. stamp III. ÚS 1414/16. Brno: Constitutional Court. Available from:III. ÚS 1414/16 – NALUS

4. Act No. 6/2002 Coll., on courts, judges, judges and state administration of courts, especially § 79–82. Prague: Collection of Laws of the Czech Republic. Available from:Act No. 6/2002 Coll.

5. SUPREME ADMINISTRATIVE COURT. 2024. Decision of the Disciplinary Board of 17 April 2024, No. 11 Kss 5/2023-156. Brno: Supreme Administrative Court. Available from:11 Kss 5/2023-156