Judges exercise judicial power. They play an integral role in the judicial process, as they apply the law and in some cases create the law. While doing this they must take consideration of current political, social, moral and economic considerations and adhere to a certain consensus of society. The role of the judge is taken for granted by many people who view their role as an administrative one. Judges, especially those of the Supreme and High Courts are under extreme pressure and do not just decide cases in a machine like fashion- by reading and administering precedents.
What is it that Judges do when they decide cases:
A judge makes binding decisions affecting the rights and duties of people and institutions. In carrying out these duties, the judge can use three main sources of Australian law. These are; Acts of Parliament or legislation, the common law and precedents, and the constitution. Judges have these tools to work with, and they decide cases based on their interpretations of them. Faced with a case, a judge seeks the relevant legislation and statutes, looks upon the constitution if required and seeks precedent in order to maintain the law as it stands.
Benjamin Cardozo wrote that:
Sometimes the rule of constitution or of statute is clear, and then the difficulties vanish. Even when they are present, they lack at times some of that element of mystery which accompanies creative energy. We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case.
Cardozo adds that once a judge is in this position, where legislation is silent , he turns to precedent for answers. Looking at precedent cases is an imperative role for the judge. Taking the view of the layman, past cases must be adhered to in order for justice to be served. For example, say I was to buy canned fruit from the supermarket. While pouring the fruit into my plate after dinner I notice an insect within the fruit. Naturally I am disgusted and want to have nothing to do with this fruit and the manufacturer who supplied the fruit. I know in my head, even without studying law that this is violation of my right as a consumer, and that in the past people who encountered such incidence where able to gain monetary compensation. Students of law would automatically relate this incident to the classic case of Donoghue v. Stevenson. Judges would know this and would, if the facts of the case permit, rule in my favour, as was done in Donoghue v. Stevenson. If a case was decided against a person when they were a defendant, they would expect the same result when they are the plaintiff. To judge differently would cause outrage. That is how the justice system builds up authority, and it is expected that the judges would abide by these authorities, unless there are special circumstances that do not permit it.
This is only one aspect of a judge s duty in relation to precedents. As Cardozo stated, It is when the colors do not match when the there is no decisive precedent, that the serious business of the judge begins. He must then fashion the law for the litigants before him. This is where a vast amount of pressure is placed upon the judge to make a righteous decision. Following the constitution and statutes is more systematic, however creating law and setting authority is a duty of judge that is intrinsically complex and fragile.
So to what extent do judges make the law? The common law is a judge made law. It has been developed by the courts and continues to be adapted to meet new situations and changing circumstances. The legislation and constitution may sometimes be unclear or ambiguous due to their nature. The constitution was written in a way to adapt to future changes and is therefor subject to interpretation. It is up to the court to decide between different interpretations.
What role should they play in making and/or applying law:
The picture of the judicial process that emerges is one of fairly routine activity. The judge becomes a kind of expert clerk His function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union. The net image is that of the judge as an operator of a machine designed and built by legislators. His function is a mechanical one.
This is not a highly flattering description of the judge, but is it accurate? Judges can play a vital role in the making and application of the law. As mentioned above, judges are lawmakers who interpret statutes and the constitution, they create law when there is no precedent and interpret the precedent when there is a need to so. Judges have molded the common law into what it is today. Professor Cappelletti, placed the judge in righteous position when he wrote:
Judges are compelled to be Law makers They have to interpret, i.e. to integrate, to clarify, mould , to transform and, not infrequently, to create ex novo the law This fact, however, does not make them legislators. There remains, I think, an essential difference between the judicial and the legislative process Good judges can certainly be, and can appear to be, creative, dynamic, activist law makers only bad judges, however would act as legislators. Indeed, I submit that if a court acts as a legislator it simply ceases to be a court.
Cappelletti s account of judge s sheds a light on what the true role of the judge should be. They are in fact lawmakers, and society recognises them as being lawmakers. They have the ability to apply the current role and adhere to precedents. They also have the ability make the law and set precedents.
So what are the limitations on the role of judges? In Australia the Commonwealth Constitution provides for a complete separation of judicial power. This is one limitation on judges because it prevents Commonwealth courts from exercising powers which are not judicial in character. Other limitations are: that courts deal only with matters brought before them for decision. Only a party can take matters to court with a sufficient interest in the outcome. Courts do not deal with matters which they consider inappropriate for judicial decisions or non-justiciable and; decisions of most courts may be overruled by a higher court. The only court not affected by this is the High Court of Australia.
The role of the judges is sufficient as it is. They have powers to make law and apply the law, and have been doing so efficiently.
To what extent should they take account of political, social, moral and economic considerations:
The judges are bound by legal reasoning. This involves plain facts made relevant by a legal standard. This is illustrated by a preface such as the facts of this case adhere to this aspect of the law, and it is the law that the following circumstance should occur. A moral reason however involves facts made relevant by a moral standard. It could be said that moral, social, and political standards are personal and subjective, while legal standards are objective.
There is a fine line between these objective and subjective standards. Legal reasons are based on the law s standard and required to be adhered to in the judicial platform. Judges, as agents of the law, have a duty to act impartially and place their prejudices aside. However, as Cardozo pointed out that all their lives, forces which they do not recognize and cannot name, have been tugging at them- inherited instincts, traditional beliefs, acquired convictions. Judges cannot escape that current any more than other mortals. Judges are in a difficult position. They must tackle the law objectively, yet they are human and their morals, along with social and political issues will be a contributing factor in their decision making.
It is important to realise that judges have the same flaws as the rest of us. They have morals and attitudes; they are subjected to the social and political issues of society. It is important to have an open forum where judges can discuss the issues of society and relate it to the law and the facts of the particular case at hand. The traditional beliefs and inherited instincts, although embedded into the psyche of the judge should not be allowed to cloud their judgements.