Abstract
This Chapter, the final in the Part, pulls together the preceding material on the judicial form of dispute resolution and social governance to explore the unique way these two roles are blended together to give a single unified and discrete judicial function. It highlights the tension within and between these roles that is at the heart of the judicial function. These tensions – between stability and responsive change; between the general and the particular – and their resolution by the act of judicial choice, is a defining feature of the judicial function and its derivative decision-making method. The tensions between these roles require an ever-present alertness from the judge as to the systemic consequences of his or her decision; the effect of every judicial choice radiates beyond its immediate effect.
This is the truly distinct nature of the judicial function: the unique way in which the two aspects of dispute resolution and social governance are woven together into a coherent single function. This Chapter argues that the judicial function is a true alloy that performs its unique function in a manner unachievable by reference purely to either one of the constituent roles. The role of dispute-resolver can only be comprehended in light of the role of governor, and vice-versa.
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Notes
- 1.
Devlin (1979), pp. 85–6.
- 2.
Ibid.
- 3.
As Pound argued, ‘[l]aw must be stable and yet it cannot stand still’: Roscoe Pound, Interpretations of Legal History (Macmillan, 1923) 1, cited in Barak (2002), p. 29.
- 4.
Cardozo (1928), p. 7.
- 5.
- 6.
Blackshield (1974), p. 543.
- 7.
- 8.
Barak neatly captures this dynamic when he observes: ‘There is no return to the point of origin; the movement is always forward. Law is in constant motion; the question is merely one of the rate of progress, its direction, and the forces propelling it’: Barak (2002), p. 62. See also Barak (2011), p. 305.
- 9.
Barak (2002), p. 30.
- 10.
- 11.
Doyle (2001), p. 135.
- 12.
Drummond (2001), p. 367.
- 13.
Barak (2011), p. 299.
- 14.
Ibid.
- 15.
Lauterpacht (1933), p. 263.
- 16.
Barak (2011), p. 299.
- 17.
Devlin (1979), p. 3.
- 18.
Guillaume (2011), pp. 5–6.
- 19.
Fiss (1979), p. 30. Fiss argues that while ‘the judge’s decision may bring an end to the dispute’ so that ‘dispute resolution may be one consequence of the decision’ ultimately, ‘the function of the judge is to give the proper meaning to our public values by enforcing and thus safeguarding the integrity of the existing public norms or by supplying new norms.’
- 20.
Misteravich (1992), p. 41.
- 21.
Landes and Posner argue that a court system produces two types of service: one is dispute resolution, the other is rule formulation: Landes and Posner (1979), p. 236.
- 22.
Ibid.
- 23.
As Landes and Posner observe, when ‘a court resolves a dispute, its resolution... provides information regarding the likely outcome of similar disputes in the future’: ibid., p. 236.
- 24.
Fiss (1979), p. 14.
- 25.
The most obvious case being the giving of advisory opinions, that is, a non-dispute related decision: See for example: Statute of the International Court of Justice ch 4; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 47.
- 26.
See for example: In re Judiciary and Navigation Acts (1921) 29 CLR 257; United Public Workers of America v Mitchell, 330 US 75 (1947); Electric Board & Share Co v Securities & Exchanges Commission, 303 US 419 (1938).
- 27.
See Bell (2006), pp. 98, 160, 217.
- 28.
As Doyle notes, while the accepted limits on the judicial role are not immutable, we should not ‘change those limits without understanding what we are doing and why, and the effects that changes might have on the judiciary as an institution and on the public perception of the judiciary’: Doyle (2001), pp. 133–4.
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McIntyre, J. (2019). Articulating the Judicial Function. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_5
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