Introduction

The question whether judicial reasoning is necessarily political is significant because its goes to both the character of modern, liberal democracies, which in the English speaking world generally incorporate a more or less rigid separation of powers in which the legislature and not the judiciary embodies the democratic principle, and the nature of judicial decision making itself. Each of these considerations can be thought of as an aspect of the same concern: who exercises legitimate power in the common law polity? The notion that judges do or might exercise political power sits uncomfortably with the notion that in a democracy the people through their elected representatives in parliament are sovereign. As a doctrinal issue, this can be expressed in the English context as a debate about the sovereignty of parliament, and the extent to which, if judges act politically, such political action curtails or limits parliamentary sovereignty. But in another sense the question of whether judicial reasoning is necessarily political takes on such cogency only because of certain fundamental features of the common law itself. These features of the common law open the common law to a critique in which judicial reasoning is “exposed” as being inherently political because judicial decisions have political consequences. But reasons and not consequences are the main consideration here, and in that regard there is a sense in which judicial reasoning is necessarily political: whilst judges are for the most part constrained by precedent and legal principle, they do make choices in hard cases between legal principles with regard to public policy and community values. In a modern democratic state where the parliament is sovereign it is incumbent upon the judiciary to refer explicitly to those choices, and to justify them, so that they may be subject to public debate and to reversal in the legislature.

Politics

Politics includes Weber's notion of politics as a competition for power in relation to the state.[1] However politics cannot be reduced to an analysis of the competition between interest groups for control of the state or the distribution of the state's bounty.[2] Politics also includes broader questions regarding the distribution of power within society including cultural and economic power, and includes questions regarding the distribution of power within the workplace and industry, and within the family, and in other social domains.[3] In my opinion, judges may act politically where they make decisions based, in whole or part, on considerations regarding the ideal distribution of power within society, including with reference to the state (for example in industrial relations or judicial review cases), or when they make normative judgements regarding the social acceptability of behaviour practised by a social group or groups (anti-discrimination law, criminal law, immigration law).

Understanding the political aspects of judicial reasoning is important because, as Barnes points out, an express recognition of the political role of the judiciary may give rise to a “nightmare vision” where parliamentary democracy itself is undermined:

“It is arguable that it is profoundly and dangerously anti-democratic to suggest means by which judges could appropriately undertake a representative role. Not only does this legitimise behaviour that is improper for the judiciary, but for the judges to have the means to claim populist support for their activities has the potential to increase judicial power still further. The “ nightmare vision”  would entail the judges claiming greater legitimacy for their actions than Parliament, with that institution's familiarly deficient democratic credentials.”[4]

Some essential features of the common law

To investigate this subject properly it is necessary to first understand some key features of the common law to see why the common law has been unable to conceptualise a theory of the state or of the political as a separate realm of human conduct subject to its owns principles. In an historical sense the common law is the body of rules developed by the king's judges in England, as developed and added to over the course of time.[5] However Cotterrell argues that the common law is best understood not as a body of rules but as a set of general principles employed in a specialised form of legal reasoning or methodology.[6]  In that sense the common law is separable from the particular rules in force from time to time and is therefore characterised by fluidity and adaptability through time. However this fluidity is in a key sense alien to classical conceptions of the role of change, and particularly judge-made change, in the common law.[7]

Cotterrell, following Maitland, argues that the common law has traditionally been unable to develop a coherent theory of the relationship between law and politics. The common law has no conception of the political realm or even of the state, relying instead on the concept of the Crown:

Originating in a social order in which political authority could be conceptualised as a set of private property rights held by monarchs or their subordinates, common law thought recognised royal authority, and later parliamentary authority, as given by common law or by some fundamental principles underlying it.[8]

A consequence of this doctrinal feature of the common law is that, in the context of the modern liberal democracies, the common law “cannot easily come to terms with the concept of the modern legislative and administrative state with its complex network of intersecting and self-renewing authorities.”[9]

In the classical view as expounded by Blackstone the common law judge are the “depositories of the laws, the living oracles, who must decide in all cases of doubt.”[10] In this formulation the role of the judge is essentially apolitical, with no scope for the application of personal political convictions to the resolution of legal disputes.  Modern formulations of judicial decision-making tend to reject the declaratory theory of law, adopting a more realistic approach and recognizing the role of judges in making the common law. For example, in 1972 Lord Reid stated:

“There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. 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 pass word and the wrong door opens. But we do not believe in fairy tales anymore.”[11]

But as Lord Radcliffe had already observed, the public recognition of the judicial role in law-making has far-reaching and potentially unsettling implications, precisely because “we do not want to run the risk of finding the archetypal image of the judge confused in men's minds with the very different image of the legislator.”[12] Radcliffe was suggesting that public confidence in the independence of the judiciary would be under-mined if it was openly acknowledged that judges make laws. But even on a doctrinal level, the recognition of the creative role of the judiciary raises the question, on what basis do judges make decisions? If judges do not simply declare the law, but rather make the law, to what extent is legal decision making arbitrary, and based on personal political convictions, and to what extent does legal principle continue to exert a controlling influence on judicial decision making?

An incomplete critique

As a result of these peculiarities of common law doctrine it is possible to construct a critique of common law reasoning as being essentially political in one or more senses. Such critiques fill the hole left by the common law's incomplete conceptualisation of its relationship to politics. For example, J.A.G. Griffith in his classic study “The Politics of the Judiciary” advanced the thesis that “judges in the United Kingdom cannot be politically neutral because they are placed in positions where they are required to make political choices which are sometimes presented to them, and often presented to them, as determinations of where the public interest lies”.[13] As subsidiary element of Griffith's thesis is that judges' “interpretation of what is in the public interest and therefore politically desirable is determined by the kind of people they are and the position they hold in society; that this position is part of the established authority and so is necessarily conservative, not liberal.”[14]

Griffith develops his argument both by reference to the social profile of the English judiciary, and to the social outlook which, according to Griffith, is typical of the English judiciary as a group. In Griffith's view these two facts are related in a causal sense. Referring only to the senior officers of the English judiciary, being the members of the Court of Appeal and the House of Lords (now the Supreme Court), Griffith points out that “judges have by their education and training and the pursuit of their profession as barristers acquired a strikingly homogenous collection of attitudes, beliefs and principles, which to them represent the public interest.”[15] Griffith does not argue that judges pursue the interests of the government of the day. On the contrary, judges have security of tenure. They are therefore institutionally free to pursue their own conception of the public interest. According to Griffith, this view of the public interest comprises three broad sets of beliefs regarding: (i) the fundamental supremacy of the interests of the state in any competition with individual rights, (ii) the primacy of the need to maintain law and order in society, and (iii) the judges' view on the social and political issue of the day.[16]

Griffith's critique of judicial reasoning as necessarily political has certain commendable features. It reminds us that the act of judging must have political consequences because judges are regularly and necessarily placed in a position where the interests of the state and of citizens are adjudicated. He also advances a sociological thesis regarding the composition of the judiciary which reminds us that judges are not representative of the people and have no or only a qualified democratic legitimacy, and are likely to hold conservative views. It is correct, as Griffith argues, that judicial reasoning is necessarily political in the limited sense that judges make decisions which have political consequences. However this is of limited significance and is really no more than a statement of the obvious. The really important question is whether judges make decisions for political and not strictly legal reasons, which really comes down to the question of the extent to which judges are free to make choices between competing legal principles based on view of public policy, community values and social utility.

Judicial reasoning: interpretation and choice

An essential element of Griffth's thesis, and the point at which in my opinion it falls down, is his conception of the law as essentially malleable in the hands of the judges. For example, in the area of judicial review of administrative decisions, Griffith argues that the cases demonstrate “the willingness of the courts to intevene and the panopoly of reasons at their disposal for doing so.”[17] To consider this view we need to return to the question posed above: if judges make the law, on what basis do they do so? To what extent, if at all, does legal precedent and principle constrain personal political conviction.[18] 

This is a question of great difficulty and complexity and with an enormous literature. Richard Posner, now a Judge of the United States Court of Appeal, draws a sketch of two camps of “legalists” and “sceptics”, the former contending that “law is more than politics and in the hands of skilful judges yields – at least at certain times, in stable conditions – correct answers to even the most difficult questions”, the latter arguing “that law is politics through and through and that judges exercise broad discretionary authority.”[19] In the legalist camp Posner places Socrates, Coke, Blackstone and Dworkin, and in the spectics camp are Thrasymachus, Hobbes, Bentham, Holmes and HLA Hart, and more recently, critical legal theorists.[20] In his 1990 book “The Problems of Jurisprudence”, Posner tries to develop “a functional, policy-saturated, non-legalistic, naturalistic and skeptical, but decidedly not cynical, conception of the legal process; in a word … a pragmatic jurisprudence.”[21]

I want to advance the thesis that judicial reasoning involves an interpretive element, whether of statutes or of precedents, and that choice is an inherent feature of any interpretive exercise, particularly in “hard cases” where legal principles are or appear to be in conflict. But this is not to say the legal reasoning is entirely unconstrained by legal principle, or that the act of judging is essentially the same as legislating. In my opinion legal principle can and does operate to bind or at least guide judges in legal reasoning. According to Sir Anthony Mason, former Chief Justice of Australia, the recognition that judges make the laws “does not mean that courts are legislatures:”[22]

“The judge, unlike the legislature, is not at liberty simply to give effect to his or her subjective view of what is the best outcome. The judge is heavily influenced by the accustomed wisdom of the past. In making the use of that accumulated wisdom, the judge draws on the skills of an interpreter, skills not ordinarily possessed by the legislature, who is more directly and overly concerned to evaluate considerations of policy and who, when it is thought necessary or desirable, will settle upon what is expedient.”[23]

Mason argues that judges make law, or develop the common law, in part by reference to policy factors and community values.[24] Although Mason does not say this expressly, it is clear that such policy factors and community values are political in the sense used in this paper, in the sense that they reflect or may affect the distribution of power within a society.

Political implications of judicial choice

The recognition of the role of judicial choice in common law reasoning gives rise to the question as to the authority by which judges make laws given that judges do not have any democratic mandate. One argument has been that judges are better equipped because of certain features of the judicial process to engage in moral or political reasoning than are legislators. However I agree with Jeremy Waldron that this claim is unsound.[25] Waldron, writing particularly in the context of judicial review of administrative decision-making, argues that:

“if we pay proper attention to the sort of moral deliberation that is appropriate for those deciding in the name of a whole society on outstanding watershed issues of individual and minority rights, the case that can be made for assigning those issues to courts is by no means compelling.”[26]

But I do not think this is a complete answer to the problem raised by the insight that judicial reasoning, particularly in hard cases involving choices between competing legal principles, involves an interpretive exercise which by which judges make decisions by reference to perceived public policy considerations and community values. While Waldron may be right that judges should adopt a restrained view of their jurisdiction to review administrative decisions, his argument does not touch the broader issue that in common law reasoning generally political considerations can and do operate to fill the gaps in legal principle.

In the English context any recognition of the political dimension of judicial reasoning must make sense in terms of, and be consistent with, the fundamental postulate of the sovereignty of the parliament. It is submitted that an open and frank acknowledgement of the political choices made by judges when deciding hard cases, whether expressed in terms of public policy or widely held community values, is required by judges in the modern context. As Mason points out, the modern democratic emphasis on accountability and transparency “requires that the judge reveals all matters which have been taken into account. If a judge takes a value or a policy consideration into account then it should be revealed.”[27] Similarly Barnes argues that the Human Rights Act 1998 has required judges to take account of public attitudes when interpreting the key provisions of the Act.[28] Like Mason, Barnes argues that:

 

“the judgments made [under the Human Rights Act] will be more defensible the more seriously and openly they engage with public beliefs regarding the value questions at stake. In addition this would at least enhance democratic debate about fundamental questions that may very well otherwise be confined to the, albeit well-intentioned, inevitably narrow discourse of the courts.”[29]

Conclusion

In this paper I have argued that certain doctrinal and structural features of the common law, particularly the under-conceptualisation of the political realm in common law thought, open the common law to a kind of incomplete critique wherein judges are “exposed” for having made decisions which have political consequences. However, in a democratic polity the really significant question is whether judicial reasons have any political element. I have argued that, particularly in superior courts and in hard cases involving a choice between competing legal principles, judicial reasoning has an interpretive dimension which necessarily entails an element of choice, and that such choices are or may be determined by reference to judicial perceptions of public policy considerations and of community values. In a democracy characterised by parliamentary sovereignty, judicial reference to political considerations is legitimate in so far as such choices are made explicit in judicial reasons and are subject to public debate and possible reversal in the legislature.

Footnotes

[1]    Cotterrell, R, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edition, Lexis Nexis UK, London, 2003, p 12

[2]    Leftwich, A, “Thinking Politically: on the Politics of Politics”, in Leftwich, A, “What is Politics”, Polity Press, London, 2004, p7

[3]    See discussion in Leftwich, A, op cit, pp9-12

[4]    Barnes, L, “Adjudication and Public Opinion”, Law Quarterly Review, 2002, 118 (October), pp600-622, p620

[5]    Cotterrell, R, op cit, p22

[6]    Cotterrell, R, op cit, pp22-24

[7]    Cotterrell, R, op cit, pp23-25

[8]    Cotterrell, R, op cit, p34

[9]    Cotterrell, R, op cit, p35

[10]  Cited in Cotterrell, R, op cit, p25

[11] Lord Reid, “The Judge as Law-Maker” (1972) 12 Journal of the Society of Public Teachers of Law, 22, 22,cited in Mason, A, “The Role of the Judge at the Turn of the Century”, in Lindell, G (editor) The Mason Papers: Selected Articles and Speeches, Federation Press,  Sydney, 2007, p55

[12]  Lord Radcliffe, “The Lawyer and his times”, Not in Feather Beds, London, Hamish Hamilton, 1968, 271, cited in Mason, A, op cit, p55

[13]  J.A.G. Griffith, The Politics of the Judiciary, 5th edition, Fontana Press, London, 1997, p336

[14]  ibid

[15]  ibid, p295

[16]  ibid, p327

[17]  ibid, p326

[18]           Because the English legal system operates on a relatively strict system of precedent, this question is really only of significance at the highest levels of the judiciary, in the Court of Appeal and the House of Lords/Supreme Court, and the discussion below is limited to those judges only.

[19]  Posner, R, Problems of Jurisprudence, Harvard University Press, Harvard, 1990, p25

[20]  ibid, p25

[21]  ibid, p 26

[22]  Mason, the role of the judge at the turn of the Century, p 57

[23]  ibid, p 57

[24]  Mason, A, “Legislative and Judicial Law-Making: Can we Locate an Identifiable Boundary”, Lindell, G (editor) The Mason Papers: Selected Articles and Speeches, Federation Press,  Sydney, 2007, p65

[25]  Waldron, J, “Judges as Moral Reasoners”, International Journal of Constitutional Law, 2009, 7(1), 2-24, although see Annabel Leever's paper for the counter view: Lever, A, “Is Judicial Review Undemocratic”, Public Law, 2007 (Summer), pp280-298

[26]  ibid, p24

[27]  Mason, A, “Legislative and Judicial Law-Making: Can we Locate an Identifiable Boundary”, p64

[28]  ibid, p621

[29]  ibid, p621