Comments

This paper was presented at 2012 International Conference on Law & Society, Honolulu, USA, June 5-8. This paper may also be referenced as [2012] UNSWLRS 41.

Abstract

Calls for courts to be more representative of society rarely acknowledge the complex relationship between judicial diversity and disagreement in multi-member courts and what this says about our normative understanding of law as an institutional and social phenomenon. This paper will address diversity’s possible impact upon legal systems beyond mere representation. If, as an initial hypothesis, greater judicial diversity results in more dissent, this paper considers whether the promotion of disagreement and difference are in fact positive objectives in the law, rather than simply a cost or inevitable incident, as Richard Posner and others have suggested. Support for this contention lies in our routine maintenance of courts comprising an odd number of judges. Such clear institutional design hints at more than a toleration of minority opinions, and suggests that disagreement is not simply anticipated but may have a discernible value. While experience bears that out, an articulation of disagreement as inherently important to law has a direct bearing upon contemporary debates in the United Kingdom, Australia and other common law jurisdictions as to whether ‘diversity’ should be included as an express criterion in the appointment of judges.

Disciplines

Jurisprudence | Law | Legal History, Theory and Process | Public Law and Legal Theory

Date of this Version

9-3-2012