Academic journal article University of Queensland Law Journal

Judicial Policy-Making and the Peculiar Function of Law

Academic journal article University of Queensland Law Journal

Judicial Policy-Making and the Peculiar Function of Law

Article excerpt

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors--social values, legal rules and judging--comprise much of our study of jurisprudence. In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases. (1)


All law is policy. Every application of law is an implementation of policy. By policy, I mean a contingent judgment about the shape and functioning of collective arrangements for human affairs. Rules of law arise, either directly or indirectly, from policy choices made by some person or persons recognized as having authority to make them.

To speak of the role of policy in public law adjudication seems, therefore, to state a tautology. The adjudication of the apocryphal kadi, perhaps, occurs without reference to purposive rules--though it is hard to imagine even the most arbitrary of kadis who does not refer to some minimally consistent standards of good social order. (2) But legal adjudication always purports to be based on some articulated rule or rules and, therefore, is the effectuation of the policy embodied in those rules. This is true in every legal adjudication of whatever kind, in private law as well as public.

This conclusion is premised on the assumption that rules of law issue from deliberate human choices. There are, or at least once were, contrary schools of thought. They supposed a complete system of law that existed independent of any particular human will. The job of the legal adjudicator was to tease out the relevant rules from that abstract, we might say noumenal, system. The ancient and persistent belief in some a priori system of 'natural law' is an obvious case. But it is not so clear that even natural law is without 'policy' in the sense I have stipulated. There are many versions of natural law, but pretty much all of them are teleological, insofar as they involve some ideal picture of human existence. Some modern versions follow from a particular definition of human flourishing and work out their rules as instruments for facilitating it. (3) More traditionally, natural law is treated as a reflection of divine law--the law that God promulgates. (4) Natural law, in this sense, is no exception to the general assumption that law reflects some policy. (5) Even John Austin cheerfully accorded divine law the character of real law since it consisted of commands emanating from 'a certain source'. (6)

More problematic was the historical view of the common law as an entity, the origins of which preceded the reach of human memory. It was presumed to be a system more perfect than any that could be devised by living human beings and it was assumed that the application of reason to available precedents could approximate, but never entirely capture, its sense. Joseph Story, whose opinion in the United States Supreme Court's judgment in Swift v Tyson (7) is sometimes treated as the definitive American statement of this attitude, thought that the real, controlling rules of conduct were 'antecedent' to any decision of judges and that judicial decisions were valuable only for 'their supposed conformity to those rules'. (8) The perfection of common law, however, was often attributed to its supposed derivation from natural law and, consistent with the understanding of natural law just noted, its rules were thus indirect manifestations of the will of God. …

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