The articulate means by which judges distinguish

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Unformatted text preview: iew still proliferated in English society. The bishops of the Church of England still had the ability to exert substantial political pressure upon the politicians who strayed too far from the church's idea of social morality. This situation does not exist in the present pluralistic society. The courts are not as prolifically dominant in the role o custos moram as they were in the 19th century. It is highly questionable whether they have the accepted social authority which enables them to rigidly stand against a prevalent social paradigm shift which seeks to interpret all of social value through a commercial model. In addition, parliamentarians have a far wider ability to legislate to enforce changes in the courts than existed in past centuries. This is constitutionally balanced by the powers of the High Court of Australia to invalidate legislation which seeks to fetter the decisions of the courts in contravention of the courts' idea of judicial independence, especially on public policy grounds. Where the unruly horse of commercial demands in litigation places such pressures upon courts, through increasing assertion of'accepted economic theory', that judges perceive that the decision pendulum has overstepped prudent limits in any direction, the proscription of further growth of curial compliance with economic principles can always be initiated by reversion to argument on grounds of public policy. The articulate means by which judges distinguish prior cases, limit them to their facts, consider cases without applying the rules contained in them, and generate argument in the reasons for judgment that the alternative choices open to the bench are to be forsaken for the 'common good' 1 1 Spigelman, J.J. 2001, "The Dangers of Partial Rationality", Address at the launch of the University of N e w South Wales Law Journal, 280801 , 28 August 2001. 351 gives m e m b e r s of the judicial hierarchy the unique capacity to bridle the aspirations of litigants who claim increasingly intangible opportunity costs. The ability of judges to revert to public policy arguments may invoke criticism that judges appeal to extra-legal and intuitive criteria to settle judgments in hard cases. The criticism offered against judicial use of the 'common good' curiously parallels the denigration offered against the test of 'common sense' which is presently used to determine the issue of causation in tort cases. In addition, other legal rules still limit t amount of recoverable damages through the doctrines of remoteness and mitigation. The case-by-case method of judicial legislation dictates that changes in the common law doctrines are tediously slow and limited to the pronouncements necessary to dispose of a specific case being heard. Courts still constrain the liberty of judges to pronounce on matters which are impertinent to an instant case through the doctrine of obiter dicta. This doctrine renders those pronouncements virtually useless for purposes of precedent which do not form part of the case ratio. This preserves the future discretion of judges to decide cases according to the perceived justice in novel situations. The realization that judges make law according to a preconceived social ethic should come as no surprise, for an honest evaluation of the history of the common law reveals that judges have exercised this type of discretion since the early King's justices travelle on assize. Indeed, statements examined in this dissertation imply that the great majority of the legal content and the whole of equity have been judge-made. If this premise is accepted, any modern censure may not be able to uproot seven centuries of tradition and legal development, despite potential condemnation of the practice of judge-made law and calls for the practice of judicial discretion to cease. The continuing paradox is that the strength and resilience of the common law is where the discretion of judges is both 352 exercised and circumscribed at the same time. T he flexibility of the bench in dealing with borderline cases motivates the law to change concurrent with major social environmental adjustments, but the rigidity of strict application of stare decisis coupled with the righ appeal chains the law to past accepted decisions which are theoretically based in sound legal principle. This portrayal of discretion and precedent immediately invokes questions regarding the personal worldview which judges assume when deciding cases. In prior times, when Christianity comprised nearly the whole of the common law, conflicts arising from competing epistemological perspectives did not arise. Modern society is far more philosophically pluralistic and this will undoubtedly lead to greater conflicts both in society and in the courts when competing worldviews, which may have completely antithetical notions regarding personal rights, freedoms, and social responsibilities, are party to litigation where the courts are forced to fundamentally examine the basis of the ethics used in case disposition. Economic rationalism, Christianity, Islamic fund...
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This note was uploaded on 09/03/2012 for the course LAW 1501 taught by Professor Garva during the Three '12 term at University of Adelaide.

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