Justice of the High Court of Australia, it entails a “strict and complete
legalism”.
95
Discussion later in this text argues that this view is not logically tenable.
Nevertheless the notion that law is impartial and objective is alluring. In their
desire to infuse justice with impartiality,
96
due process, fairness, and
objectivity,
97
courts sometimes claim that they engage in “value-free
adjudication”.
98
In consequence “the public believes fervently that these
concepts, which together constitute a set of procedures believed to be
impartial, can achieve their goals of stability, predictability, equal protection,
and the reign of justice”.
99
Put another way, the ideology resident in some
common law legal systems will not easily tolerate an open and formal
acceptance of free choice by judges.
100
As demonstrated in later discussion, this ideology is incorrect because the
notion of adjudication being totally objective and value free is a myth. Myths,
however, may still serve a social function. They are a way of dealing with the
inexplicable, the unpalatable, the inconvenient or the inconclusive. They may
partly satisfy some deep psychic or primeval need which (inconveniently) will
not easily subject
itself
to empirical observation. They may describe the truth
of our aspirations rather than our achievements. They also have great potential
for manipulation in both law and politics.
Syllogism
To analyse the argument that interpreting law is rationally and objectively based
on the process of deduction it is necessary to identify the form that the
relevant syllogism would take. It is a syllogism involving propositional logic. It
takes the following form:
Major Premise
Rule X provides a specific and correct answer for cases of interpretation in
Category Y.
Minor Premise
This particular case falls into Category Y.
Conclusion
Therefore, Rule X applies in
this case and so provides a specific and
correct answer.
Figure 5.13 Syllogism for Interpreting Law
___________________
95
Sir Owen Dixon, on becoming Chief Justice (1952) 85 CLR xiv. See also
Dawson and Nicholls (1985-86), Dixon (1956). An excellent summary of this view
is found in Horrigan (1995) pp 293-294.
96
See Lucke (1982).
97
Schanck (1992) pp 2567-2568, citing Posner (1990)
98
Schanck (1992) pp 2567-2568, citing Posner (1990)
99
Schanck (1992) pp 2567-2568, citing Posner (1990)
100
Posner (1990)
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