The Judicial Function Fundamental Principles of Contemporary Judging
Judicial systems are under increasing pressure: from rising litigation costs and decreased accessibility, from escalating accountability and performance evaluation expectations, from shifting burdens of case management and alternative dispute resolution r
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The Judicial Function Fundamental Principles of Contemporary Judging
The Judicial Function
Joe McIntyre
The Judicial Function Fundamental Principles of Contemporary Judging
Joe McIntyre School of Law University of South Australia Adelaide, SA, Australia
ISBN 978-981-32-9114-0 ISBN 978-981-32-9115-7 (eBook) https://doi.org/10.1007/978-981-32-9115-7 © Springer Nature Singapore Pte Ltd. 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore
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Foreword
Judges wield power in society. The power is real if limited in various ways. Yet the judiciary can be perceived as elitist and undemocratic. Indeed, they are elite in the sense of being legal experts, and they occupy positions which are specifically designed to be unaccountable according to democratic procedures. Does this mean that their power is unjustified? Also, the legal process is expensive and slow. This restricts access to justice for ordinary people. So how can the judicial function be justified and defended in a liberal democracy committed to the rule of law? Despite opinion polls which often show high levels of trust for the judiciary, judges are not immune from a general erosion of deference and respect for authority in society. They also find themselves under pressure from politicians and the populist press when they make decisions which are not to their taste – I was myself branded an ‘Enemy of the People’ on the front page of a national newspaper as one of the three judges responsible for the first instance decision in the Miller case1 regarding the politically charged issue of the procedure for the UK to give notice to exit from the European Union. At the same time, judges face in
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