Exploring the Judicial Role in a Democracy

Abstract

This volume is dedicated to an examination of the judicial role in law –making, inspired in part by the current debate about the legitimacy of the judicial role. We begin what is a lively and eclectic collection of excellent papers with a piece by Eva Steiner which goes to the heart of the matter by examining how judicial law-making through the common law can be justified in a democracy, making a powerful case for better codification of the law in the civilian style. This is followed by Mike MacNair’s paper in which he contests the idea that the judicial role can be eliminated, but asks instead how it can be better contained. Engaging with a familiar debate on the Left about the judicial role, in a historically rich and vivid analysis, Mike Macnair argues ‘that the idea of wholly eliminating either trust in judges, or the use of judicial office for political purposes, is illusory. What is possible is to reduce trust in judges’. He then shows how this would be possible. This is followed in turn by Liron Shmilovits who reverts to analytical jurisprudence to address the late Barry Nicholas’ dilemma for the lawyer, that the law is ‘something which has its own life, which exists independently of [him or her] and is merely applied by [him or her], and yet [he or she] must on occasion in practice make law’. The solution in a sophisticated paper is to re-adopt the ‘declaratory theory’ of judicial decision-making as ‘a beneficial fiction that should be retained for reasons of principle, justice and pragmatism’. In the final three papers of the collection the focus tilts from the theoretical to a consideration of the judicial role in a number of different areas of law. Gillian Douglas and Stephen Gilmore explore the ‘legitimate bounds of the judicial development of family law in England and Wales’, and in particular ‘the legitimate scope of judicial power to offer general guideline judgments ‘controlling’ the exercise of discretion’. This is an important paper, which raises questions about the similar exercise of judicial power in other fields.