1. Should Judges or leg make law?
1.1. COMMON LAW CONSTITUTIONALSIM
1.1.1. Common law is at the centre of constitutional politics
1.1.1.1. ∴ politics operates through judicial review
1.1.1.2. ∴ CL more legit order of law (than statutes)
1.1.1.2.1. Has moral, philosophical underpinnings (rather than simple consequence of holding political power - statutes)
1.1.2. Eisenburg
1.1.2.1. Favours a generative (rather than text based) conception of RoL
1.1.2.2. Ie judges begin process of adjudication with set of legal principles and work forward to generate law (taking into account criticism and public discourse). Therefore:
1.1.2.2.1. In generating law judges appeal to social standards and moral norms (not using discression)
1.1.2.2.2. Overcomes retrospectivity as law is rooted in social standards and ∴ predictable outcomes
1.1.2.2.3. Judicial decisions are replicable
1.1.2.3. NO gaps in the law and as there will always be a social standard to apply
1.1.2.4. his theory is contingent on existence of SINGULAR morality - this is questionable: Is there a singular moral standard? Do judges know what these are? How do we decide what these standards are?
1.1.3. Poole
1.1.3.1. CL embodies morality/fundamental values (acquired due to longevity and evolutionary nature) --> ∴ judges justified in reverting to social standards which form CL
1.1.3.2. Courts have no political mandate ∴ give pref to individual autonomy
1.1.3.3. No electoral mandate ∴ must justify decisions morally
1.1.3.4. Believes CL reflects defence of the people:
1.1.3.4.1. In times when there was distrust and lack of faith in exec and leg, CL emerged as the protector of liberties
1.1.3.4.2. This was because the law had evolved organically in the eyes of the people and thus acquired legitimacy
1.1.3.5. The common law represents a matrix of principles connected with deep rooted societal, moral and political norms
1.1.3.6. Judges aren't all knowing beings ∴ cannot discern common morality in every new matter
1.2. OPPONENTS TO CLC
1.2.1. Cane
1.2.1.1. Seeks to address +/- of courts as normative legislators
1.2.1.2. Argues that political process is preferable to judicial agents of norm-legislation as they are more pluralistic and open
1.2.1.2.1. Political process has the ability to administer practical action (better capacity to examine community values and issues)
1.2.1.2.2. Political process is based on democratic values of representative and responsible government
1.2.1.2.3. Open about decisions and are more accountable
1.2.1.3. Courts more efficient at solving individual disputes however suffer as mechanisms for norm-leg
1.2.1.3.1. The role of judges is to refine, alter and develpo already legalised forms
1.2.1.4. 1. Political processes = arbitrary and partisan which leads to unprincipled statutes of law
1.2.1.4.1. In courts, judges decide between 2 competing interests, the parties ARE acting in self interest (although judges do not)
1.2.1.4.2. Leg can strike balance and better at managing intractable disputes.
1.2.1.4.3. Hard cases (no solution is clear): issue may shift from whether to legalise norm, to the qu of which norm to legalise - the later would produce arbitrary decisions
1.2.1.5. 2. legislative modification of CL removes stability and continuity, makes it hard for people to continue with their lives
1.2.1.5.1. Stability is one value that must be balanced against others (not the be all and end all)
1.2.1.5.2. Pol processes are better equipped for comprehensive review
1.2.2. Waldron
1.2.2.1. leg preferred as it is consciously planned and deliberately executed (intention to change law rather than change as a result of time)
1.2.2.2. Leg action in times of crisis can be too swift, instead of incremental change eg NT intervention
2. H/F Example: Mabo
2.1. ISSUE OF INTERPRETATION: determining whether Mabo had a claim to the land depended on how the phrase 'no other proprietor' was constructed
2.1.1. Previously interpreted in Cooper v Stuart to be 'land without settled inhabitants or law'
2.1.2. 1788 phrase 'other proprietors' constructed in light of social belief that 'settled law' couldn't exist among ATSI based on the barbarian theory underpinning colonial reception of CL
2.1.3. Mabo challenged this interpretation saying ATSI had inhabited the land
2.2. Hart
2.2.1. this issue of interpretation would be one in the core as the definition of ‘proprietor’ had settled meaning
2.2.1.1. therefore no possibility of reopening Mabo without causing a problem of legitimacy.
2.3. Fuller
2.3.1. Evident in Brennan J reasoning in Mabo
2.3.1.1. acknowledged that construction of ‘other proprietors’ in 1788, acknowledging that it no longer fits with ‘the facts as we know them today’
2.3.1.2. judgement illustrated how challenging the penumbra forces us to challenge our core values, and redefine them in light of changed circumstances
3. How should judges interpret the law?
3.1. NATURAL LAW
3.1.1. Fuller
3.1.1.1. No distinction between CORE & PENUM - law is always interpretive not just at punctuated moments, involving constant consideration of social policy and morality in order to determine purpose of law
3.1.1.2. Acknowledges we live in changing society, as society develops, grey areas appear in the law (eg where words provided in statute are no longer relevant)
3.1.1.2.1. Helps to make legitimate the interpretive processes of judges
3.1.1.3. We must look beyond the meaning of just words, pushing on the penum and challenging the law
3.1.1.3.1. Statute a coherent workable whole
3.1.1.4. RoL only exists because we participate in making it what it ought to be
3.1.2. Dworkin
3.1.2.1. Challenges Hart's ideas about adjudication
3.1.2.1.1. Hart Doesnt define what legal adjudication IS - ie what J should/shoudnt do
3.1.2.1.2. Hart acknowledges there are gaps in the law - the law is open textured
3.1.2.1.3. Hart asserts here J must use discretion, but doesn't explain this
3.1.2.2. Disagrees with Hart becaus
3.1.2.2.1. 1 SoP forbids judicial law making
3.1.2.2.2. 2 RoL judicial law making is retrospective
3.1.2.3. Law as INTEGRITY
3.1.2.3.1. we engage in moral argument to determine which principles are most appropriate and apply them
3.2. POSITIVISM
3.2.1. Hart
3.2.1.1. Descriptive rather than normative
3.2.1.2. Refutes what he lables 'blind interpretation' practised by legal 'formalists' or 'literalists' who try to solve interpretation problems by construing words according to their 'ordinary meaning' in a non legal context
3.2.1.3. Case distinction
3.2.1.3.1. CORE: easy cases where there is no doubt about laws application, and the judge should apply the law as it is
3.2.1.3.2. PENUMBRA: hard cases where the law 'runs out' and judicial discretion and reference to morality and social policy is necessary
3.3. LEGAL REALIST
3.3.1. Law is indeterminate
3.3.1.1. No hard & fast rule
3.3.1.1.1. challenge the notion that law and the process of law is stable and consistent
3.3.1.1.2. there is no singular way of reading a statute, or a case or many cases
3.3.1.1.3. see indeterminacy in ALL aspects of legal decision making; the choosing of the rule, the application of the rule and generality of the rule.
3.3.1.1.4. directly challenges the notion of stare decisis and the belief that the law as it is stated is correct and constant
3.3.2. Llewellyn
3.3.2.1. MUSIC analogy
3.3.2.1.1. there are many ways to play the music, just as there are many ways to interpret the law - no one is right or wrong, it must simply be done well and in harmony
3.3.3. Stone
3.3.3.1. The world is changing, and the law must change and develop to keep pace
3.3.3.1.1. this concept is at ODDS with stare decisis
3.3.3.2. The law is INDETERMINATE
3.3.3.2.1. Judges have huge scope to determine ratio
3.4. CRITICAL LEGAL STUDIES
3.4.1. Hasnas
3.4.1.1. Law is INDETERMINATE because
3.4.1.1.1. No one solution, language is vague therefore must interpret language in light of social/political beliefs
3.4.1.1.2. conflicts in underlying norms b/w parties - it is always possible to find a doctrine to afford authority to a normative value
3.4.1.1.3. Hasnas argues indeterminacy may NOT be a bad thing as it gives individualxs a chance to be heard under the law
3.4.1.1.4. Because the law is RADICALLY indeterminate judges must also use discretion in solving disputes
3.4.2. Draws from radically political culture of Anglo-US legal scholarship post 60s and seeks to provide an environment in which scholarship can be diverse