Abstract
The judiciary as an institution is, perhaps more than any other social institution, commonly defined and distinguished by its method. To understand contemporary judging, it is necessary to address the principles that underlie the methodology by which judges make decisions. In this Part, I examine this derivative judicial method by articulating its central elements and by showing how it flows from the articulated judicial function.
This Chapter, the first of the Part, begins this discussion of method by examining the historical discourses on judicial method and the ideal judicial archetypes that embody them. It argues that the archetypal judge of the old orthodoxy of formalism is Justice Machine: the judge has no freedom; the externally-mandated and determinate law provides the major premise, and objective facts provide the minor premise. In contrast, the archetypal judge of the reformation is the benevolent, contemplative and semi-divine Justice Solomon, who has sufficient wisdom, learning and foresight to make the constraint of ‘law’ irrelevant. In this Chapter, I argue that neither Justice Machine nor Justice Solomon are capable of discharging dual-aspects of the judicial function, dependent as it is upon irresolvable (and inevitable) tensions. Rather, this Chapter argues that the judicial process cannot be reduced to either logic or choice, and is instead composed of non-arbitrary discretions, guided by reasoning yet dependent upon an act of will.
The judge of this new archetype is an essentially human agent, forced to take responsibility for his or her choices. The interests and imperatives of Justice Solomon and Justice Machine act like the proverbial angel on one shoulder and devil on the other. The human judge, responsible for the choice and exposed to damnation, cannot know in a given instance which alternative is devil or angel. The judge is required to respect both instinct and institution to find balance. Only in this way can the judge fulfil the objectives of the judicial function, resolving the instant dispute and engaging in effective social governance. This Chapter sets out how this archetype is used in the remainder of the Part to explore the processes of norm development, factual assessment, and evaluation and application by which judicial disputes are determined.
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Notes
- 1.
See especially Lasser (2004).
- 2.
As Wróblewski states: ‘[a] search for explanation of the motives for making a concrete decision, necessary for its “understanding” [“heuresis”] is quite different from the determination of premises which uphold the soundness of the decision [“justification”]’: Wróblewski (1992), p. 15.
- 3.
See Kirby (2003).
- 4.
- 5.
- 6.
See Prohibitions Del Roy (1608) 12 Co Rep 63.
- 7.
See Bacon (first published 1625, 1906 ed), p. 258. Bacon argued that without this restriction judicial authority ‘will be like the authority claimed by the Church of Rome.’
- 8.
As Kirby observes, Bacon saw in the role of the judge reflections of post-Reformation England – the new Bishops were expected to find theirs in the text of the Holy Scriptures, the English judge was expected to find their authority in the text of the law: Kirby (2004), p. 5.
- 9.
Blackstone (1979), p. 73 (emphasis added).
- 10.
Blackstone (1979) described judges as ‘living oracles’: p. 69.
- 11.
Willis v Baddeley [1892] 2 QB 324, 326. It should be noted that this was a political stance in the light of the more activist role of Parliament, especially in the 1820s.
- 12.
See Practice Note [1966] 3 All ER 77.
- 13.
For discussion of the types of limitations explicitly placed on the judges: see Lasser (2004), p. 35.
- 14.
Montesquieu (first published 1748, 1989 ed), p. 163. See Soeharno (2009), p. 48.
- 15.
Kirby (2004), p. 6.
- 16.
Mason (2007), p. 16.
- 17.
Traynor (1968), p. 401. Traynor describes this as the ‘spell of Blackstone’s vision of the law’: ibid., p. 401.
- 18.
Wróblewski (1992), p. 280.
- 19.
As Wróblewski (1992) notes, this revolt was one consequence of a ‘crisis of continental positivist thought in European legal culture’: p. 284.
- 20.
Soeharno (2009), p. 48.
- 21.
- 22.
See Lasser (2004), p. 179.
- 23.
Quoted in ibid., p. 170.
- 24.
Gény captures this sentiment elegantly when he states: ‘[w]e shall never be able to flatter ourselves, in any system of judicial interpretation, that we have eliminated altogether the personal measure of the interpreter’: quoted in Cardozo (1921), p. 174.
- 25.
Holmes (1897), p. 465.
- 26.
Ibid. Holmes usefully identifies this danger: ‘[s]o judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and, if they would take more trouble, agreement inevitably would come.’
- 27.
As Holmes eloquently states: ‘the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is an illusion, and repose is not the destiny of man.’: Holmes (1897), p. 466.
- 28.
Ibid.
- 29.
Ibid.
- 30.
Cardozo (1921), p. 168.
- 31.
Cardozo identified four directive forces (or ‘methods’): the methods of Philosophy (Analogy), (Historical) Evolution, Tradition and Sociology. While Cardozo acknowledged that the use of these methods was imprecise and intuitive, he argued that they nonetheless meaningfully limited the judge: Cardozo (1921), pp. 30–1, 43.
- 32.
See Soeharno (2009), p. 48.
- 33.
Frank (1936).
- 34.
Guthrie et al. (2007), p. 2.
- 35.
See Frank (1936), p. 100.
- 36.
Hutcheson (1929), p. 285. Hutcheson argued that the judge’s deliberative faculties were relevant ‘only to justify that intuition to himself, [and] to make it pass muster with his critics.’
- 37.
Soeharno (2009), p. 48.
- 38.
See Hutcheson (1929).
- 39.
Reid (1972), p. 22 (emphasis added).
- 40.
See Mason (2007), p. 16. See Australian Consolidated Press Ltd v Uren [1969] AC 590; Geelong Harbour Trust Commission v Gibbs Brights & Co (1974) 129 CLR 576, 583–5.
- 41.
Kirby (2004), p. 43.
- 42.
Lord Reid (1972) argued that ‘we must accept that for better or worse judges... make law’, and tackle instead the question of how do and they should approach their task: p. 22.
- 43.
For example, the looming shadow cast by Sir Owen Dixon over a generation and a half on the High Court (Kirby (2004), p. 9) meant that the doctrine of ‘strict and complete legalism’ (see Sir Owen Dixon: Address on Being Sworn in as Chief Justice (1952) 85 CLR 11, 13–4; Dixon (1965), p. 152) held sway perhaps longer in Australia than anywhere else. These final assertions of legal formalism, such as that made by Kitto J in Rootes v Shelton (1967) 116 CLR 383, 386–7 rejecting extra-legal considerations, quickly faded with Dixon’s retirement.
- 44.
Kirby (2004), p. 43.
- 45.
Neuborne described this model as reducing the judicial system to ‘a sausage factory where it doesn’t much matter what goes into the product as long as it tastes good’: Neuborne (1992), p. 420.
- 46.
Scalia (1997), p. 25.
- 47.
For example, as Kirby notes, the term ‘judicial activism’ has become ‘a code phrase for denunciation and demonisation’: Kirby (2006), p. 578.
- 48.
See, for example, Hart (1994), pp. 141–7, 272–6, Dworkin (first published 1986, 1998 ed), ch. 7.
- 49.
Lasser (2004).
- 50.
Wróblewski (1992).
- 51.
MacCormick (1978).
- 52.
Lucy (1999).
- 53.
Neuborne (1992), p. 421.
- 54.
Boukema (1980), p. 76.
- 55.
- 56.
I note that drawing a single archetype from the miscellany of the reformation is less straightforward, but Justice Solomon can arguable be considered the ideal that underpins the majority of such approaches.
- 57.
Justice Solomon can be compared with Gény’s président Magnaud et les bons juge du Château-Thierry: see Cardozo (1921), pp. 138–9.
- 58.
To this extent an alternative image is Weber’s ‘Kadi under the Palm Tree’: see Kronman (1983), pp. 76–7.
- 59.
Boukema (1980), p. 76.
- 60.
See ibid.
- 61.
Fuller (1946), p. 377. Fuller drew on the work of Cardozo, for whom, he argued, law was ‘by its limitations fiat, by its aspirations reason, and the whole view of it involved a recognition of both its limitations and its aspirations’: ibid., p. 377. I would argue that this interaction between choice and constraint is perhaps even more tightly intertwined; it is not clear which of fiat and reason is the aspiration and which the limitation.
- 62.
- 63.
As Douglas notes, the ‘search for a stable security, in the law or elsewhere, is misguided’: Douglas (1949), p. 735 (emphasis added).
- 64.
Ibid. In a beautiful illustration, Douglas continues: ‘[t]here is only an illusion of stability in a Maginot Line. Social forces like armies can sweep around a fixed position and make it untenable. A position that can be shifted to meet such forces and at least partly absorb them alone gives hope of security’: ibid., p. 735.
- 65.
See Levi (1965), p. 400.
- 66.
See, for example, Geyh’s (2008) rejection of the dichotomy between law-based and preference-based models: p. 435.
- 67.
Fuller (1946), p. 377.
- 68.
Ibid., p. 382.
- 69.
The history of jurisprudence, for example, is replete with attempts to avoid a state of irresolvable tension by eliminating one branch of an antinomy: the natural lawyer eliminates the role of fiat while the positivist eliminates underlying reason: see ibid., pp. 381–2.
- 70.
Ibid., p. 377.
- 71.
Geyh (2008), p. 443.
- 72.
See ibid.
- 73.
Ibid., p. 449.
- 74.
Wróblewski (1992), p. 278.
- 75.
Pound (1908), p. 605.
- 76.
See Fuller (1946), p. 377.
- 77.
Pound (1908), p. 605.
- 78.
As Pound argues that the ‘scientific’ nature of law is necessary ‘in order to eliminate as far as may be the personal equation in judicial administration’: Pound (1908), p. 605.
- 79.
Pound argues that judicial decision-making must be assessed by the quality of decisions it produces, by the results it achieves, not by the niceties of its internal structure nor the beauty of its logical processes: Pound (1908), p. 605.
- 80.
As Dworkin states, judicial interpretation ‘folds back into practice, altering its shape, and the new shape encourages further reinterpretation’: Dworkin (first published 1986, 1998 ed), p. 48.
- 81.
As Levi observes, the judge both applies and alters legal norms: ‘[t]he interpreter of the standard becomes the creator of the standard’: Levi (1965), p. 406.
- 82.
Varga (1994), p. 169.
- 83.
For example, Hand argues that the whole structure of the common law is an obvious denial of the theory of an exhaustive pre-determined law: Hand (1922), p. 479.
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McIntyre, J. (2019). The Judicial Form of Decision-Making. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_6
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