Let me start with the sceptical point - in law decisions have to be made in circumstances where there are often insufficient grounds for doing this. Possibly the law’s meaning is unclear or the salient facts not obvious. In these circumstances no application of method or technique can spare judges the task of deliberation and decision. The available methods and techniques will guide the result but do not produce it. As is said in this context - there are no rules governing the reasonable use of rules. Here is a gap calling for deliberation and an act of judgment. Because of this gap there is inevitably a personal dimension to judging and whether through the luck of genetic inheritance or life experiences some people have better judgment, more wisdom, are better practical reasoners, than others.
However when we reflect on legal judgment we are not initially thinking of the personal qualities, or the life plans, of the individual decision-maker. Rather we are considering judging as a social practice; judging as a social role that has an inherited weight of cultural expectations as to how it should be carried out. I am going to offer some suggestions as to how we should understand this role.
Date of this Version
Arthur Glass, "Reflections on Judging: Judging as Application" (May 2007). University of New South Wales Faculty of Law Research Series. Working Paper 35.