VALUES IN THE SUPREME COURT: DECISIONS, DIVISION AND DIVERSITY by RACHEL CAHILL-O’CALLAGHAN

Abstract

Few modern-day lawyers, and even fewer in the socio-legal tradition, now believe in what Pound termed ‘mechanical jurisprudence’, whereby judges objectively and impassively analyse the law in order to arrive at the single correct legal answer hidden within. Not only does this idea do a great disservice to the complexity of the law, which is filled with gaps, rife with ambiguity, and full of opportunities for the exercise of discretion, but it also mischaracterizes the essential nature of judgment making. For better or for worse, humans cannot make totally objective judgments, divorced from their experiences, values, and preferences. Whilst it is comforting to think that judges are somehow different in this regard, we should heed the words of Lord Dyson: ‘it may be surprising [but] occasionally we need to remind ourselves that judges are human beings [who] respond to problems in different ways.’1 Indeed, as long ago as 1943, Lord Wright opined that the judge does not approach the case with a blank mind. Subconsciously or consciously, trained mental processes are involved, rules learned in the past function in his mind, his own past experience and his past reading of other cases all combine to lead to a judgment.2