Concern About Judicial Method  

Oleh:

Coper, Michael

Jenis: Article from Journal - ilmiah internasional
Dalam koleksi: Melbourne University Law Review vol. 30 no. 2 (Aug. 2006), page 554-575.
Topik: JUDICIAL; judicial method

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Perpustakaan Pusat (Semanggi) Nomor Panggil: MM70 Non-tandon: 1 (dapat dipinjam: 0) Tandon: tidak ada

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Sir Owen Dixon’s judicial method is misunderstood if it is taken to deny any role for judges in changing the common law. But it did espouse gradual rather than abrupt change, and it downplayed the impact of values and policy considerations on the choices left open by competing legal arguments. Social and other changes in the external environment since Sir Owen delivered his famous address ‘Concerning Judicial Method’ at Yale University in 1955 may go some of the way towards explaining why both aspects of this approach came under pressure. In any event, the High Court from the mid - 1980 s onwards both embraced more extensive change and more openly discussed and balanced competing policy considerations, of which the maintenance of certainty and stability was but one. Yet this more progressive and more transparent approach brought its own assortment of problems, including intense criticism from those who disagreed with its methodology and its outcomes - especially the latter. This article looks at ‘judicial activism’ in the context of the imperatives of the judicial process, and finds the phrase wanting as a useful analytical tool. The article also begins to explore a number of ‘why’ questions : why is there such strong disagreement ; why do some judges favour one approach and some another ; and can there be a reconciliation ?

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