Is Judicial Reasoning Necessarily Political?

The question of whether judicial reasoning is necessarily political deserves our attention, as it touches on the character of democratic governance and the nature of judicial decision-making. This debate revolves around the legitimacy of judicial power and the tension between judicial authority and parliamentary sovereignty. Judicial reasoning involves applying legal principles to cases, but it also inevitably intersects with societal values, public policy, and power dynamics. This raises the question: is judicial decision-making inherently political?

Politics and Judicial Reasoning
Politics can be understood broadly as involving power dynamics within society, beyond the competition for control of the state. Judges may act politically when they make decisions based on considerations about power distribution in society, as seen in cases involving industrial relations, judicial review, or discrimination law. Understanding this political dimension is crucial because it raises concerns about the potential erosion of parliamentary democracy if judges exercise power in ways traditionally reserved for elected representatives.

The Nature of Common Law and Its Political Implications
The common law is characterised by its adaptability and reliance on judicial reasoning. However, it lacks a coherent theory that separates law and politics. Historically, common law developed without a clear concept of the state or the political realm, focusing instead on the authority of the Crown and later parliament. This doctrinal gap has made it difficult for common law systems to conceptualise the modern legislative and administrative state.

Classically, judges were seen as neutral interpreters of the law, merely declaring what already existed. However, modern views recognise that judges play a creative role in developing the law, as acknowledged by Lord Reid’s famous rejection of the declaratory theory of law. Yet, this recognition raises concerns about judicial legitimacy. If judges make law, how do they justify their decisions? Are their choices based purely on legal principles, or do personal political views influence their reasoning?

Critique of Judicial Reasoning as Political
Critics like J.A.G. Griffith argue that judges are inherently political actors because their decisions often involve political choices regarding the public interest. Griffith contends that judges' views are shaped by their social background, leading to a conservative bias that influences their decisions. While Griffith’s critique highlights the political consequences of judicial decisions, it oversimplifies the extent to which legal principles constrain judicial reasoning.

Interpretation, Choice, and Legal Constraint
Judicial reasoning involves interpretation, particularly in difficult cases where competing legal principles are at play. Interpretation inherently involves choice, but that does not mean judges are entirely free to impose personal political preferences. Legal principles and precedents exert significant control over judicial decisions. Judges are not legislators and must justify their decisions based on legal reasoning, even if policy considerations play a role.

Sir Anthony Mason argues that judges develop the law with reference to policy and community values, which can be considered political in a broad sense. However, judicial reasoning remains distinct from legislation because judges must interpret existing legal principles, not simply legislate based on subjective views.

The Role of Judicial Choice and Its Democratic Implications
Acknowledging the political element in judicial reasoning raises questions about the legitimacy of judges making law without a democratic mandate. Critics like Jeremy Waldron argue that judges are not necessarily better equipped than legislators to engage in moral or political reasoning, especially when deciding issues of individual rights or social policy.

In a system of parliamentary sovereignty, judicial reasoning must remain accountable. Judges should be transparent about the policy considerations and societal values that influence their decisions, allowing for public debate and potential legislative correction. This transparency is crucial in maintaining the legitimacy of judicial power in a democracy.

In conclusion, judicial reasoning is necessarily political in the sense that judges, especially in difficult cases, make interpretive choices that are informed by public policy and societal values. However, this does not reduce judicial decision-making to mere politics; legal principles and precedents still guide and constrain judicial reasoning. In a parliamentary democracy, it is legitimate for judges to consider political factors, provided they do so openly and are subject to public scrutiny and legislative oversight.