Abstract
The judicial function is, however, more than simply a form of dispute-resolution. Courts are public actors engaging in social governance. This Chapter, the third of this Part, examines the public governance aspect of the judicial function – the extent and manner in which the judiciary not only determines and develops the law, but helps to maintain the system of governance by law. It argues that mechanisms of dispute resolution can be used to engage in social governance by affecting (1) the sources of public power/force; and (2) the social norms/rules of society. First, judicial resolution is distinguished by the ability to ensure compliance with judicial decisions by utilising the enforcement abilities of the state, thereby becoming a means of maintaining social order. Second, judicial resolution performs a particularly important role in maintaining and regulating the legal norms of a society. This Chapter then explore the four principal means by which judicial decisions necessarily impact upon and alter the law by:
-
1.
Reinforcing Legal Rules through Application;
-
2.
Increasing the Predictability of Legal Rules;
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3.
Maintaining Coherence Between Legal Rules; and
-
4.
Altering the Substantive Legal Rule.
It concludes that the judiciary continues to represent a core institution of governance engaged in the guidance and control of social behaviour.
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- 1.
Baar (1999), p. 216.
- 2.
- 3.
Baar (1999), p. 216.
- 4.
Doyle (2001), p. 134.
- 5.
Roberts (1979), p. 28.
- 6.
For example, social life in any community, if it is to be maintained, requires an element of order such that that ‘children can be reared and consistent arrangements made for the provision of food, drink and shelter’: Roberts (1979), p. 30.
- 7.
See Baker (1990), p. 16.
- 8.
See the role of the Kgatla Chief in: Roberts (1979), pp. 143–52.
- 9.
Consider the role of Emperor Justinian in instituting his code to bring stability to his empire: see Thomas (1975).
- 10.
The written laws of the Anglo-Saxon Kings were particularly concerned with the preservation of the peace, by encouraging the aggrieved party to accept compensation instead of resorting to reprisals: Maitland (1908), p. 4.
- 11.
For example, following the anarchy of Stephen’s reign, Henry II revolutionised the procedures of the courts of England: see Pollock and Maitland (first published 1898, 1968), p. 137, Adams (1926), p. 127.
- 12.
Shapiro (1981), p. 21.
- 13.
Shapiro (1981) argues that all pre-appointed third-parties necessarily introduce into the resolution the interest of whoever appointed them: p. 18. Stone Sweet argues that this necessarily undermines the triadic nature of the system, however so long as the third-party partiality remains separate from the parties’ interests this is not the case: Stone Sweet (2000), p. 11.
- 14.
Shapiro (1981), pp. 22–4.
- 15.
Ibid., p. 22.
- 16.
- 17.
The word ‘governance’ was used for the first time in a metaphorical sense by Plato. See document on etymology prepared by the European Commission Étymologie du terme “gouvernance”, European Commission. http://ec.europa.eu/governance/docs/doc5_fr.pdf
- 18.
This general purpose is consistent with the broad purposive statements of national constitutions. For example, the Australian Parliament is granted power ‘to make laws for the peace, order, and good government of the Commonwealth’: Australian Constitution s 51. More expansively, the Preamble to US Constitution recognised the ends of the Union as an attempt to ‘establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity’: United States Constitution.
- 19.
While for Hobbes the desire for peace and order provided the very genesis of government (Hobbes (first published 1651, 1996 ed), p. 117), for the Ancient Greeks the core objective was found in the wellbeing of the society and its individuals: See for example: Aristotle (1996), pp. 71, 75, Plato (2000), pp. 121–6.
- 20.
While I recognise that political theorists have long split into two broad camps as to the best way to achieve the even relatively simply goal of maintaining ‘order’ – with one camp emphasising the role of ‘power’ and the other emphasising the role of ‘rules’ (see Roberts (1979), p. 168) – for my purposes it is sufficient to highlight the different and complementary roles of both ‘power’ and ‘rules’ in promoting the purposes of social governance.
- 21.
Shapiro (1981), p. 20.
- 22.
Maitland (1908), p. 40.
- 23.
Schmidhauser (1987), p. 54.
- 24.
That use of violence was often subject to conventions regulating both the severity and manner of the aggression, for example a requirement of proportionality – an eye for an eye: Roberts (1979), p. 57.
- 25.
Ibid., p. 41.
- 26.
Fuller (first published 1964, 1969 ed), p. 110.
- 27.
See Kelsen (first published 1945, 1961 ed), p. 21.
- 28.
See R v Rice (1803) 3 East 581; R v Cuddy (1843) 1 Car & Kir 210; R v Young (1838) 8 C & P 644.
- 29.
Holmes (1897), p. 457. As a challenge to such an adjudicator becomes a de facto challenge to the government, there arises a strong incentive for the government to stand behind the dispute-resolution institution both to protect its own legitimate interests as well as the interests of those governed.
- 30.
Roberts (1979), p. 41.
- 31.
Stone Sweet (2000), p. 11.
- 32.
Ibid.
- 33.
Ibid.
- 34.
Ibid., p. 12.
- 35.
Shapiro (1981), p. 24.
- 36.
Ibid., p. 25.
- 37.
- 38.
See Tate (1987), p. 25.
- 39.
See Plato (2000), pp. 121–6.
- 40.
Devlin (1979), p. 84. As Lord Devlin observes, it is not the bare fact of injury that arouses a sense of injustice, but the fact that a wrong has been suffered that cannot be challenged or remedied. Those wrongs present ‘the affront to his dignity which, if it is left unrelieved, will lead to disorder and... social unrest’: ibid., p. 3.
- 41.
As Devlin (1979) notes, a sense of injustice is more easily aroused by the ‘apprehension of unequal treatment than by anything else’: p. 85.
- 42.
Arguably the more a method is concerned with social governance the greater latitude will be required for rule-making.
- 43.
- 44.
Misteravich (1992), p. 41.
- 45.
Ibid., pp. 39–40.
- 46.
Devlin (1979), p. 4.
- 47.
Couture (1950), p. 7.
- 48.
- 49.
Indeed, in many modern States, a political choice has been made to only exercise force against its citizens through a decision of a court or where there is a pressing emergency. For example, Dworkin argues that ‘law’ insists that ‘force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.’: Dworkin (1986), p. 93.
- 50.
I note that there is an extensive literature concerning ‘judicial power’, largely concerned with issues of constitutional relationships. My focus is not on ‘judicial power’ in this sense, but on the relationship between the judiciary and other institutions of governmental power within a society, particularly with regards to the ability to use force to control behaviour.
- 51.
Bhagwati (1988), p. 38.
- 52.
Abraham (1998), p. 2.
- 53.
Couture (1950), p. 21.
- 54.
Barak (2002a), p. 28.
- 55.
Ibid., p. 28.
- 56.
Fiss (1979), p. 2. Indeed, Fiss argues that the core social purpose or function of the judge ‘is not to resolve disputes, but to give the proper meaning to our public values’ with the resolution of the dispute a mere consequence of this decision: ibid., p. 30.
- 57.
Devlin (1979), p. 89.
- 58.
Misteravich (1992), pp. 40–1.
- 59.
Misteravich describes this affirmation of public values through ‘law-declaring’ as a key ‘governing function.’: Misteravich (1992), p. 41.
- 60.
Pound (1917).
- 61.
Dickson (2000), p. 388.
- 62.
See Wróblewski (1992), p. 52.
- 63.
For further detail on the process of judicial decision-making and the interpretation/construction of legal norms, see below Part III, Chap. 7.
- 64.
- 65.
Barak (2002a), p. 81. Barak goes on to argue that it is a vain and fruitless aspiration to ‘uncover what the legal meaning of a text “truly” is’ as ‘a text has no “true” meaning’: ibid., p. 64. This issue of discretion and the potential for exhaustive (choice free) legal regimes has animated legal theorists for at least the last century. It has been suggested that ‘the grand theorists’ desire to restrain judicial discretion is an impossible dream based on an unwillingness to tolerate uncertainty’: Farber and Sherry (2002), p. 155.
- 66.
- 67.
Rose (1999), p. 328. As Rose argues, the ‘outcomes from past adjudications permit predictability and the provision of advice to avoid disputes in the future.’
- 68.
It may, however, go too far to suggest, as Galanter does, that this role represents the ‘principal contribution’ of courts to dispute-resolution: Galanter (1983), p. 121.
- 69.
Ibid.
- 70.
As Galanter notes, this clarification includes not only the rules that may govern the dispute but also ‘possible remedies and estimates of the difficulty, certainty and costs of securing particular outcomes’: ibid., p. 121.
- 71.
See Wróblewski (1992), p. 57.
- 72.
As Wróblewski (1992) observes, ‘some degree of uniformity of judicial application of law appears as one of the conditions of the controlling functions of law’: p. 57.
- 73.
Ibid.
- 74.
Dickson (2000), p. 378 (emphasis added).
- 75.
See Dworkin (1986), ch. 7.
- 76.
Dworkin argues that the judge is required, far as is possible, to treat the ‘present system of public standards as expressing and respecting a coherent set of principles, and, to that end, to interpret these standards to find implicit standards between and beneath the explicit ones’: Dworkin (1986), p. 217.
- 77.
Rose (1999), p. 329.
- 78.
Similarly, the role can be contrasted with that of the legal academic, for the judge is constrained the particular dispute and can only develop principles in response to the demands of that dispute.
- 79.
- 80.
Dworkin argues that they do this whether they ‘announce a rule or principle or qualification or elaboration.’: Dworkin (1986), p. 6.
- 81.
Ibid.
- 82.
Consider the rejection of the ‘marriage’ defence to rape: R v R [1992] 1 AC 599.
- 83.
Consider the approach taken in abandoning the ‘highway authority immunity’ (Brodie v Singleton Shire Council (2001) 206 CLR 512) or the rejection of the ‘rule in Ryland v Fletcher’ (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520).
- 84.
Consider the approach of the High Court of Australia in attempting to bring clarity to s 92 jurisprudence: Cole v Whitfield (1988) 165 CLR 360.
- 85.
Consider the approach taken in ‘wrongful life’ tort cases: Cattanach v Melchior (2003) 215 CLR 1; McFarlane v Tayside Health Board [2000] 2 AC 59. Bingham (2000) describes such cases as occurring in ‘an authoritative desert’: p. 39.
- 86.
In this vein, Rose argues that courts must ‘be responsive to the needs of society and aware of its values, expectations and fears’: Rose (1999), p. 324.
- 87.
Barak (2002a), p. 28.
- 88.
Ibid., pp. 27–8.
- 89.
Ibid., p. 28.
- 90.
- 91.
As I discussed above, a sense of injustice poses a great threat to social order, so that the provision of justice to the individual becomes ‘one of the highest interests of the state’: Goodhart (1963), p. 160.
- 92.
Dickson (2000), p. 378.
- 93.
Misteravich (1992), p. 41.
- 94.
Rose (1999), p. 330. As Rose notes, ‘while the role of resolving disputes can be performed through alternative processes, the enforcement of public values through the law-declaring function cannot.’
- 95.
Barak (2002a), p. 121.
- 96.
Barak (2002a), p. 23 (emphasis added). In a similar vein, Barak has described this process in the following terms: ‘[p]rior to the judicial determination, the law (the constitution, the statute, the common law) spoke – even after all rules of interpretation were used – with a number of voices. After the judicial determination the law speaks with a single voice. The law was changed. A new meaning was created’: Barak (2002b), p. 1205.
- 97.
Rose (1999), p. 332.
- 98.
Jennings (1987), p. 145.
- 99.
- 100.
Jennings (1987), p. 145.
- 101.
Lord Devlin, The Listener (12 December 1968), cited in French (1998), p. 15.
- 102.
Southern Pacific Co v Jensen, 244 US 205, 221 (1917) (Holmes J).
- 103.
Hand (1922), p. 479.
- 104.
The judicial decision provides something of a ‘feedback loop’ to the legislator to examine how legislation will operate in practice, and where that operation differs from expectations, provides an opportunity to readdress the issue.
- 105.
Barak (2002a), p. 26.
- 106.
As French notes, ‘[t]he entrusting by the legislature to the judiciary of responsibility for developing the law within broadly stated guidelines is commonplace and has become more so over recent decades. It reflects the complexity of our society and the infinite variety of individual circumstances’: French (2010), p. 4, French (2008), p. 63.
- 107.
Barak (2002a), p. 117.
- 108.
Misteravich (1992), pp. 39–40.
- 109.
- 110.
- 111.
See Resnik’s critique: Resnik (2004), p. 813.
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McIntyre, J. (2019). The Judicial Form of Social Governance. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_4
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