I remember reading somewhere that The Australian’s columnist Janet Albrechtsen has a law degree. If that’s right, she should know better than to make this silly statement in a recent article where she slagged High Court Justice Michael Kirby:
Gleeson could have added that he, too, has a dream that judges, such as Kirby, will stop dreaming about being a legal social worker and, instead, stick to applying the law.
Like many careless statements, mostly by conservative commentators, it creates the impression that there actually exists some ideal form of objective judging, where judges just “apply the law” free from any subjective moral, social or political value judgments.
But that simply isn’t true, a proposition that isn’t even especially controversial among legal theorists. Legal realists from Oliver Wendell Holmes onwards, positivists like HLA Hart, and social jurisprudential scholars like Julius Stone, all agree that the law unavoidably contains significant indeterminate elements, where judicial discretion and “creativity” necessarily come into play. Hart put it this way:
Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture.
That reality (of significant indeterminacy of law and the necessity for subjective judgment) can be obscured but not obliterated by the adoption of the sorts of mechanistic “legalistic” criteria beloved of judicial conservatives like former High Court Chief Justice Sir Owen Dixon. But not even Dixon argued that judicial choice/discretion were avoidable. Instead, he argued that the safest course for the judiciary in formulating criteria for resolving legal disputes (especially in relation to constitutional interpretation, but also in relation to the common law) was to adopt formulae capable of objective application with the role of subjective judgments and discretion minimised.
However, Dixonian legalism in constitutional law led to a huge increase in federal power at the expense of the states (a result many conservatives still bemoan), not to mention chaotic and unworkable interpretations of section 90 of the Constitution (duties of excise) and section 92 (freedom of interstate trade). In the hands of a less principled legalist in Sir Garfield Barwick, it also led to the emasculation of Australia’s income tax laws in the 1970s.
American legal scholar Ronald Dworkin attempted a few years ago to argue that law wasn’t necessarily as indeterminate as the legal realists and positivists asserted. In a 1997 article titled Dostoyevsky vs. Dworkin: The Brothers Karamazov and Judicial Decisionmaking, Daniel J. Solove summarises Dworkin’s argument:
For Dworkin, however, “even when no settled rule disposes of the case, one party may nevertheless have a right to win.” Dworkin asserts that law directs the outcome of all cases; there are no gaps in the rule of law that occasion the use of individual discretion. Although a particular case may not readily fit under any explicit rules, there exist in the law (in statutes and precedents) moral standards called “principles” which are applicable to the case. According to Dworkin, a principle is “a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.” When analyzed and applied, principles will govern the outcome of all cases, even hard cases. Principles underpin statutes and precedents; they are the components of arguments in the law. Although they are generalized propositions, principles are dissimilar from rules. While “[r]ules are applicable in an all-or-nothing fashion,” principles “incline a decision one way, though not conclusively, and they survive intact when they do not prevail.” Rules are thus more rigid than principles. “Principles have a dimension that rules do not–the dimension of weight or importance.” Principles all pull in their own ways with their own weights, but the final vector will lead a judge to a decision. Thus, for Dworkin, principles fill the gaps encountered in hard cases. As a result, “in most hard cases there are right answers to be hunted by reason and imagination.”
However, even for Dworkin that is true only in theory. He concedes that the task of finding, evaluating and balancing all factors that are relevant to making a judicial decision is a “Herculean” task to which real-life judges can only aspire. Moreover, Dworkin only applies his “law as integrity” theory to ascertaining the appropriate legal principles to determine a case. He doesn’t even attempt to develop a coherent theory about ascertaining the facts (as opposed to legal principles), deciding which are “material”, or concluding which of numerous possible legal principles best fits those facts. Not even Dworkin would argue that judging is just a matter of “applying the law”.
Personally, my faourite author on this subject is Julius Stone, who I had the privilege of being lectured by while I was a student late in Stone’s academic career in Australia. Incidentally, Justice Kirby was at one stage a research assistant for Julius Stone, and his attitudes towards law and judging were significantly shaped by Stone’s jurisprudential theories. Here is a long-ish extract from Stone’s book Legal System and Lawyers’ Reasoning that discusses the role of choice and creativity in judging:
In short a “rule” or “principle” as it emerges from a precedent case is subject in its further elaboration to continual review, not merely in the light of analogies and differences as to relevant legal concepts and propositions, and as to the relations between fact-situations, and the problems springing from these; but also in the light of the import of these analogies and differences for what is thought by the later court to yield a tolerably acceptable result in terms of “policy”, “ethics”, “justice”, “expediency” or whatever other norm of desirability the law may be thought to subserve. No “ineluctable logic”, but a composite of the relations seen between legal propositions, of observation of facts and consequences, and of value-judgments about the acceptability of these consequences, is what finally comes to bear upon the alternatives with which “the rule of stare decisis” confronts the courts, and especially appellate courts. And this, it may be supposed, is why finally we cannot assess the product of their work in terms of any less complex quality than that of wisdom. “A judge has to call on all the resources of his experience and wisdom in coming to a conclusion. Some judges hew rather closely to the line; some are more free-wheeling.”
When, therefore, Lord Wright says that “judging is an act of will”, and that “notwithstanding all the apparatus of authority, the judge has nearly always some degree of choice”, this is but the negative side of the answer to the question how the “perpetual process of change” in the common law can be reconciled with “the rule of stare decisis“. The rest of the answer lies in the wisdom of the exercise of the duty of judicial choice down through the generations. It flows from recognition that our law constantly produces and reproduces new areas for choice-making, not only by frequent resort to what I have called “categories of illusory reference” of substantive law, but (above all) by maintaining at the centre of “the rule of stare decisis” a notion of the ratio decidendi of a case which is almost a perfect medium for the creation of multiple and competing references. While thus leaving room for the play of contemporary insight and wisdom, however, the notion also directs the intention of the later court to the contexts of earlier cases, and to the views of logical consistency, experience and values displayed by judges in the earlier contexts. It thus tends to ensure that what official experience there is relevant to the instant situation is taken into account.
If we are to recognise in this wider sense the truth of Holmes’ view that “behind the logical form lies the judgments as to the relative worth and importance of competing … grounds, often an articulate and unconscious judgment,” the question may properly be raised how far judgment is likely to become wiser by dint of bringing its grounds to judicial consciousness and articulation. … one great merit, certainly, of “unconsciousness” in creative judicial activity is that it compels the judge to try to justify his conclusion in terms of harmony with the “existing legal system”. And even though the effort cannot be successful in its direct objective, some of the side-effects are very important. Not only are the potentialities of existing law fully extended, but the irresponsibility or unwisdom of the weaker, or the head-strong, judges are held in. Yet, recognising this, we may still feel that such judges would be as well controlled in the long run by the censure or ridicule of the bar or their fellow-judges, especially those with power to reverse or overrule. While the stronger and the wiser ones would be encouraged by consciousness of their creative role to move with conscious deliberation and as far as possible within the more comfortable limits of the familiar.
Yet even if the answer to this question had to be less confident, it would be the duty of all of us, in free societies, to cherish the processes by which we are held together; and the duty to understand is not the least important corollary of the duty to cherish. If we must continue to think of stare decisis as sanctifying still any particular “principles of the common law”, then let us also see that the relevance of Ehrlich’s truth that “apparently stable principles” can “become so general by the uninterrupted process of extension and enrichment of their content … that they are adaptable to the most diverse situations. … In actual fact (the norm) is not the same norm at all; it has remained unchanged in appearance only; it has received an entirely new inner content. By such processes it is, that the “rule of stare decisis” maintains its sway over the common law, by compelling a self-perpetuating self-renewal of what the common law contains.
Justice Kirby’s principal sin (in my view anyway) lies not so much in failing merely to “apply the law”, because that is a meaningless exhortation, but rather in ignoring his mentor Julius Stone’s admonition that “wiser ones [sh]ould be encouraged by consciousness of their creative role to move with conscious deliberation and as far as possible within the more comfortable limits of the familiar.”
I agree with Janet Albrechtsen that Kirby sometimes exceeds the bounds of judicial propriety in his public extra-judicial utterances. He certainly exceeded them IMO in his so-called “I had a dream” speech at QUT. And I agree that Kirby’s ongoing attempt to elevate international law to a position of centrality not only in shaping the common law and interpreting ordinary statutes but also in deciding the meaning of the Australian Constitution, is an egregious example of excessive judicial activism. So are his occasional attempts to elaborate implied guarantees of due process and equal protection from the text of Chapter III of the Constitution, and to establish “proportionality” as a general test for the constitutional validity of federal laws.
All of these doctrines (if accepted) would tend to make the High Court Australia’s ultimate law-maker in place of the Parliament to which the Constitution entrusted that role. And once established, the doctrines Kirby espouses could equally be employed by a judge with “neocon” or christian fundamentalist beliefs to frustrate and usurp a future progressive government. However, although that’s a serious indictment, it’s still simplistic nonsense to assert, as Albrechtsen does, that Kirby or any other judge (especially at appellate level) can just “apply the law”.
PS – Kirby himself makes similar points to the above in an article titled Beyond the Judicial Fairy Tales in Quadrant earlier this year:
HOW, IN THE FACE of renascent formalism and serious community ignorance about civics, including the judiciary, can the truth of our legal system be told, so that it will be understood by lawyer and citizen alike? First, and most obviously, it is the responsibility of judges to drop the deception that law is mechanical, with all problems solved by just “applying” the law. Judges must tell it as it is. They must do so not just in private conversations with each other but publicly, so that citizens and fellow lawyers, politicians and media pundits can be offered the means to understand the true nature of the task in which judges are engaged. Judges face choices. It is inherent in their task which involves applying rules stated in words that are often ambiguous. Some can deny this. Some may wish it were not so. But it will not change the truth. …
Another way to explain reality, as that great judge Lord Reid taught, is by humour. The magic words “strict logic and high technique” are less likely to be taken seriously since Lord Reid in 1972 exploded the formalist fairy tale with sharp Scottish derision:
Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more.