Political Character of the Judiciary

The basic concept of judicial independence as explained above should not be confused with the traditional, juristic conception of judicial decision-making as a purely value-neutral and deductive process by which general legal principles are applied to specific factual situations. This latter notion has come under considerable and legitimate academic criticism from a number of quarters. For instance, the influential Australian academic Professor Julius Stone was an early critic of traditional juridical explanations of legal reasoning. His analysis of precedent and judicial decision-making argued that legal doctrine and logic did not in themselves compel particular decisions in appellate cases, but rather provided so-called ‘illusory categories of reference’ , which justified decisions ultimately based on a policy choice.⁵⁵ Other critics of traditional, ‘objective’ notions of judicial decision making have argued that it is the personal attitudes and values of judges, not legal principles, that are a primary, or at least significant, factor influencing judicial decision-making. Critics such as Griffiths have thus sought to debunk the

‘traditional view’ that depicts the judge as a kind of “ political, economic and social eunuch, [with] ... no interest in the world outside his court” .⁵⁶ Griffith’ s analysis of the English appeal courts highlighted how English judges were guided by a particular, homogenous view of the

“ public interest” rooted in their professional training and socio-economic background.⁵⁷ In America, judicial behaviouralists, such as Schubert, endeavoured to quantitatively analyse the

55 see Julius Stone, 3UHFHGHQWDQG/DZ'\QDPLFVRI&RPPRQ/DZ*URZWK (Butterworths, 1985).

56 J A G Griffith, 7KH3ROLWLFVRIWKH-XGLFLDU\ (Fontana, 1985), p193.

correlation between empirically ascertainable elements of a judge’ s background, including age, sex, race, social-economic class, attitudes and values, with actual pattern of judicial decision-making.⁵⁸ Other critics, however, have criticised the “ psychologising” of judicial behaviouralism as both oversimplistic and unconvincing, in part due to the looseness of the concept of ‘attitude’ , which theorists have sought to correlate with judicial behaviour.⁵⁹

Nonetheless, behaviouralism, like legal realism before it, has at least succeeded in questioning traditional notions of judicial “ neutrality” and re-contextualising understandings of the judicial process within its political and social context. In this vein, Griffith challenged the notion of the judiciary as a “ check and balance” on government power, instead arguing that judicial opposition to the government (in Britain) was “ an aberration” and that the judiciary was synonomous with

“ established authority” and was thus “ necessarily conservative and illiberal” .⁶⁰ Other theorists have also recognised the important role of the judiciary in preserving the status quo. For instance, in Shapiro’ s comparative, functionalist analysis of courts he argues that courts, in addition to their dispute processing function, serve as a ‘social controller’ and an extension of the administration and in doing so play an important part in the maintenance of political regimes.⁶¹

Nonetheless, oversimplified, ‘elitist’ accounts of judicial power do not serve to explain examples of liberal judicial activism, including judicial review of state decisions and the promotion of minority rights. According to Cotterrell, such contrasting judicial functions reflect the contrasting values of order and justice, both of which are the foundation of law’ s legitimacy.⁶² Whilst the judiciary helps maintain the stability of the social and political order by providing legal frameworks and legal legitimacy for government and government acts, it also strives to preserve the integrity of the legal order itself. This is achieved by both upholding professional standards of doctrinal rationalisation, judicial impartiality and also meeting the wider demands of justice, part of which relates to the effective administration of the ‘dispute resolution’

57 Ibid., p198.

58 see for instance, Glendon Schubert, +XPDQ-XULVSUXGHQFH3XEOLF/DZDV3ROLWLFDO6FLHQFH (Honolulu:

The University Press of Hawaii, 1975).

59 Cotterrell, 7KH6RFLRORJ\RI/DZ$Q,QWURGXFWLRQ, p219.; Roman Tomasic, 7KH6RFLRORJ\RI/DZ (London: Sage Publications, 1985), p81.

60 Griffith, 7KH3ROLWLFVRIWKH-XGLFLDU\, p223.

61 C Neal Tate, "Judicial Institutions in Cross-National Perspective: Toward Integrating Courts into the Comparative Study of Politics," in &RPSDUDWLYH-XGLFLDO6\VWHPV&KDOOHQJLQJ)URQWLHUVLQ&RQFHSWXDO

DQG(PSLULFDO$QDO\VLV, ed. John R. Schmidhauser, $GYDQFHVLQ3ROLWLFDO6FLHQFH (Butterworths, 1987), p24.

function of courts.⁶³ Clearly how the demands of ‘order’ and ‘justice’ will be interpreted will vary widely amongst individual judges, let alone amongst the varying social-legal contexts of different jurisdictions.

What these various theoretical perspectives do illustrate is the considerable discretion exercised by any judge who applies or interprets a legal framework. The bare fact that an exercise of judicial judgment is free from executive interference or personal interest (as judicial independence would require) does not inform us at to what other, legitimate, forms of influence have bearing upon the judicial judgment. Judicial discretion may be influenced by a range of factors highlighted in the literature, ranging from personally held values or notions of the ‘public interest’ , to wider, indirect pressures of an institutional, social or political nature. As the influential social-legal scholar Donald Black observed, legal doctrine alone cannot adequately predict or explain how cases are handled.⁶⁴ Judicial decision-making can thus not be solely comprehended as the logical extrapolation of legal principles, but must be understood and analysed within the broader social-legal context within which it occurs.

Thus, although legal rhetoric depicts litigation as a purely objective process determined by the letter of the law itself, in reality the subjective interpretation of the judge plays a large role. As discussed above, the values and political views of judges have been recognised as an important influence on the manner in which they interpret and apply legislation.⁶⁵ In this respect, a more rigorous approach to environmental law enforcement is likely to be taken where judges value environmental sustainability as a matter of public interest comparable with economic growth or national security. Such an approach was taken by US courts in the 1970s, when “ ...activist judges interpreted provisions of the National Environmental Policy Act in order to require rigorous environmental assessment.” .⁶⁶ An activist judiciary, moreover, is prepared to go beyond the adjudication of individual, legal conflicts and address more far-reaching issues of social or political policy.⁶⁷ However, where judges regard environmentalism as merely a ‘partisan’ cause, or where they are unwilling to stray into the realm of judicial law or policy making, then they may be more reluctant to adopt a rigorous approach to the interpretation of environmental law. In

62 Cotterrell, 7KH6RFLRORJ\RI/DZ$Q,QWURGXFWLRQ, p235.

63 Ibid., p234.

64 Donald Black, 6RFLRORJLFDO-XVWLFH (Oxford University Press, 1989), p6.

65 Cotterrell, 7KH6RFLRORJ\RI/DZ$Q,QWURGXFWLRQ, p230-34.

66 Robinson, "Public Interest Environmental Law- Commentary and Analysis," p313.

the United Kingdom, for instance, judges have for the most part shunned the activist mantle stressing the liberal, individualist view that judges should remain independent of supposedly

‘partisan’ interests.⁶⁸

In this respect, Robinson has distinguished between communitarian and Diceyan, individualist attitudes to environmental public interest law.⁶⁹ A communitarian attitude sanctions environmental public interest actions, regarding them as a legitimate means of political participation and a check or balance to the authority of parliaments and bureaucrats. Such a view supports a more radical, political role for the judiciary. In contrast, a Diceyan, liberal attitude, such as that adopted by the judicial majority in the UK, sees the role of the court in a solely legalistic light – as an independent, neutral arbiter of disputes and means for impartial application of the law. ⁷⁰ Such a view allows little scope for a judiciary seeking to respond in a creative legal fashion to society’ s values with regard to the environment.

The political character of a judiciary, and the extent to which it is prepared to be activist, is a function of a number of political and intellectual conditions. Activist judiciaries are more common in federal polities, such as the United States, Canada, Australia and India, where parliamentary and executive power is more diffused.⁷¹ The absence of a career judiciary has also been identified as a factor contributing to more activist judiciaries in common law countries such as the U.S. and Australia, although this has not been the case in England.⁷² Judicial independence is a necessary precondition for judicial activism, although in itself it will not necessitate an activist judiciary.⁷³ In the United Kingdom, for instance, appellate courts have displayed little tendency toward activism despite a long history of judicial independence. The available scope for judicial activism will also depend upon the predominant political and legal doctrines. Generally the scope for judicial law making in the common law tradition appears greater than in the civil law tradition.⁷⁴

67 Kenneth Holland, -XGLFLDO$FWLYLVPLQ&RPSDUDWLYH3HUVSHFWLYH (Macmillan, 1991), p1.

68 Robinson, "Public Interest Environmental Law- Commentary and Analysis," p317.

69 Ibid., p301.

70 Ibid., p316-17.

71 Holland, -XGLFLDO$FWLYLVPLQ&RPSDUDWLYH3HUVSHFWLYH, p7.

72 Ibid., p8.

73 Ibid. . 74 Ibid., p9.