Reproduced with permission from Tony Blackshield, "Judicial Reasoning" in Tony Blackshield, Michael Coper, and George Williams (eds), Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007) 373. The Companion is available online through Oxford Reference Online.
Judicial reasoning refers both to the process of thought by which a judge reaches a conclusion as to the appropriate result in a case, and to the written explanation of that process in a published judgment. The latter is the principal mechanism of judicial accountability: an explanation of the reasons for decision is owed not only to the unsuccessful litigant, but to everyone with an interest in the judicial process, including other institutions of government and ultimately the public. No other public decision makers are under such a heavy obligation to explain the reasons for their decisions. Yet the specialised nature of legal discourse means that the function of public justification is often imperfectly realised: the explanations are designed to be understood primarily by other judges and by the legal profession in general.
While the published reasons for decision lend themselves to objective analysis, the underlying processes of thought involved in exploring and resolving a legal problem are so complex and variable that neither judges nor writers on jurisprudence have been able to reduce them to an adequate explanatory or prescriptive model. Ideally, the written reasons for judgment not only provide an accurate mirror of the underlying reasoning process, but may actually help to shape it: the task of reducing one’s thinking to writing is itself an aid to thinking, and sometimes a decisive aid. The Dixon diaries record several instances in which Dixon, on completing his written judgment, found that he had reached the opposite conclusion to that which he expected to reach when he began to write.
A typical written judgment begins by outlining the facts of the case, and then proceeds to a discursive exploration of the relevant legal doctrines and principles. Implicit in this structure, though rarely spelled out explicitly, is the idea that the final stage in the process of judicial reasoning can be reduced to a syllogism: the relevant propositions of law provide the major premise, the facts of the case are the minor premise, and the conclusion follows simply from the application of the law to the facts. The difficulty is that neither premise is given: both premises need to be established, and tailored to each other in such a way that the explicit or implicit construction of the final syllogism is possible. Moreover, while the syllogistic model might imply that the legal and factual premises can be formulated independently, this is rarely the case. The mental processes of apprehending the facts and formulating the relevant propositions of law unavoidably shape each other.
In trial courts, the fact finding process is onerous and uncertain, involving the sifting and interpretation of complex and often contradictory evidence. In the High Court that burden is far less demanding. In the Court’s appellate jurisdiction, the facts on which the Court must base its conclusions have already been established at the trial level; only rarely does the Court go behind the established findings to reappraise the facts for itself (see Edwards v Noble (1971); Warren v Coombes (1979)). Even then, the reappraisal goes not to the raw or ‘primary’ facts established by the evidence, but to the inferences to be drawn from those facts, or their evaluative interpretation. In cases where the facts have been found by a jury—especially in criminal law—appellate reluctance to interfere with the findings is even stronger, since the jury represents community perceptions more directly than appellate judges can do. The appellate concern with ‘facts’ is then at a further remove: the role of the Court is not to determine whether the jury’s findings are ‘true’, but to satisfy itself whether a properly instructed jury could reasonably or ‘safely’ have arrived at such findings (see, for example, the Chamberlain Case (1984)).
Yet the rarity of explicit reappraisal of ‘the facts as found’ is misleading. In every case, the apprehension of the primary facts involves processes of inference, evaluation and selection. Even when the Court is presented with a frozen record of findings, the mental process of absorbing it is neither mechanical nor instantaneous. The first rough apprehension of the fact situation will already trigger tentative intuitions of the area of law that might be relevant—prompting scrupulous attention to some aspects of the facts, and dismissal of others as irrelevant. But as a fuller picture unfolds, those initial impressions may change. Different configurations of the facts may suggest different legal issues, in turn suggesting different perceptions of what are the relevant facts. Moreover, the legally relevant ‘facts’ may themselves be value-laden. A finding of ‘fact’ that the defendant was fraudulent, or negligent, or unconscionable in the exercise of undue influence, involves complex judgments of fact and value, guided partly by propositions of law and partly by the Justices’ own understandings of human experience. The divergent perceptions of the ‘facts’ in Louth v Diprose (1992) (see Men; Stereotypes) are an extreme example.
For all this, the main concern of appellate courts is not with the difficulties of finding the facts, but with formulating the principles that determine their legal consequences. In the High Court’s original jurisdiction, the need to establish the relevant ‘facts’ is even less important—at least now that single Justices are no longer routinely required to sit as trial judges or make findings of fact for the Court. In cases involving constitutional law, the relevant framework is often supplied simply by the text of the statute whose validity is challenged; the Court has no effective machinery for establishing other ‘facts’ that might be relevant, for example as to the social or economic effects of legislation (see Judicial notice). Yet even when the provisions of a statute are themselves the primary ‘facts’, judicial perceptions of which provisions are relevant will interact selectively with perceptions of the constitutional issues. In the Communist Party Case (1951), for example, the crucial issues turned not on the primary legislative goal of suppressing communism, but on the absence of judicial safeguards for executive judgments under sections 5 and 9 of the Act, and on the effect of the statutory recitals in the preamble (see Judicial review).
Despite these pervasive interactions with ‘the facts’, the primary role of the Court, in appellate and original jurisdiction alike, is the formulation of legal principles—not only because the authoritative legal materials must be interpreted and manipulated to yield a major premise suitably tailored to the immediate problem, but because, through the system of precedent, the propositions thus formulated will themselves be added to the authoritative materials for future cases in the High Court itself and in all Australian courts. For this reason, each Justice is conscious of the need to formulate the relevant law in a way that will be an acceptable basis for decision not only in the immediate dispute, but in similar cases thereafter.
Although this may sometimes involve the overruling of an unsatisfactory precedent, that is a last resort. The more usual objective is to formulate the law for disposal of the instant case by arriving at a fair interpretation of the existing legal materials. Accordingly, the process of judicial reasoning depends almost entirely on an exhaustive review and reinterpretation of earlier judicial decisions and judgments, including obiter dicta.
In popular images of the Court, this distinctive mode of reasoning is often not understood—and when it is understood, it may often provoke negative reactions. As Mason observed extra-judicially in 1988:
Precedent brings in its train corresponding detriments—a mode of argumentation which appears to be excessively formal because it is preoccupied with past decisions and dicta, and an inability to respond to the need for change. The examination of past authorities dominates the process of legal reasoning … The attention lavished on the discussion of decided cases is often disproportionate to discussion of the inherent considerations which might influence an outcome one way rather than another. This characteristic of legal reasoning, for it is as evident in academic writings as it is in judgments, conveys the impression that the law superimposes its own standards on the processes of reason. And it conveys the impression that law is a remote discipline, a realm for specialists, removed from decision-making processes as they are understood by non-lawyers.
Yet while the analysis of previous judgments may appear to be narrowly focused, the analytical methods are extremely diverse—ranging from mere cut-and-paste collage of quotations from earlier judgments, to wide-ranging reflective essays on the problems of legal ordering in the spheres of human action involved. Even if the end result is the explicit or implicit formulation of a legal proposition that can be applied syllogistically, the interpretive process cannot itself proceed along linear or logical lines. Indeed, philosophers who have tried to analyse legal reasoning have been struck by its lack of linearity. John Wisdom, in 1944, found ‘not a chain of demonstrative reasoning’, but ‘a presenting and representing of those features of the case which severally co-operate in favour of the conclusion … The reasons are like the legs of a chair, not the links of a chain.’ Chaim Perelman, in 1958, compared a persuasive argument to ‘a piece of cloth’, with a total strength ‘vastly superior to that of any single thread which enters into its warp and woof’.
If the process cannot be reduced to simple deductive logic, it cannot be reduced, either, to less formal methods of reasoning such as induction or analogy. While each of these plays a significant part, their functions are very different. Judges wanting to extend an earlier approach are likely to reason by induction; those who want to avoid or confine it are likely to reason by analogy. Inductive reasoning extrapolates the implications of a precedent beyond its particular facts; analogical reasoning can be and often is used to confine it to its particular facts.
It is sometimes said that inductive reasoning tends to produce legal ‘principles’, while analogical reasoning produces more narrowly defined legal ‘rules’. Yet the very same intuitive idea may sometimes provide the broad inspirational guidance of a ‘principle’ and sometimes the more specific constraint of a ‘rule’. As Martin Golding observed in 1963, what matters is not whether the Court is applying a ‘rule’ or a ‘principle’, but whether it is engaged in a process of ‘principled decision-making’—in which choices between wider or narrower views of the precedents are guided by an explicit or intuitive sense of policy considerations and values, and concern for the good order of the body of legal doctrine as a whole. This concern for ‘good order’—sometimes explained in terms of the ‘coherence’ or ‘consistency’ of the legal system, sometimes more pretentiously in terms of its ‘integrity’ or ‘pattern maintenance’—is part of the Court’s role in every case, since each new litigious problem requires the Court to revisit a particular area of legal doctrine, and to reappraise or restate it to ensure that it remains in good working order.
In inductive reasoning, one particular decision—or more frequently, as George Paton suggested in 1946, a series of decisions ‘plotting the points on a graph’—will be used to extrapolate a broad hypothesis which can also be tailored in such a way as to bear on the instant case. The facts of the previous cases become less important, except to the extent that a series of cases can now be seen to involve a set of common fact-elements (not always apparent at the time). In analogical reasoning, the facts of the previous case assume greater importance. In the narrowest instances where only an ‘actual decision’ is treated as binding, it will not be followed unless its factual analogy with the instant case is exact. More commonly, what is important is not the presence but the absence of analogy. A precedent case will be distinguished because, although its facts partly correspond to those now presented, the analogy is incomplete: the previous situation involved a fact-element now perceived as ‘material’—whether or not it was so perceived by the precedent judge—which is absent from the present case. If the earlier decision depended on that fact-element being present, it should be followed only in a case where that fact-element is reproduced.
This process of ‘distinguishing’ a case on its facts may sometimes be an artificial or spurious way of avoiding a result that no longer fits the judge’s perception of ‘good order’. More often, such ‘distinctions’ are a legitimate way of clarifying the presuppositions of the earlier approach, and thus clarifying the scope or rationale of an emergent rule or principle. As Jacobs insisted in HC Sleigh v SA (1977), ‘the point or points of distinction must be relevant to the subject matter upon which the Court has given its decision’, and the reasons for the distinction ‘must be explored so that the course which is emerging … can be the better predicted’.
In all this, the Court has a double purpose: to formulate a clear and persuasive basis for decision in the instant case, and to shape and restate the developing body of relevant legal doctrine in a way that is both just and ‘coherent’. All judges in a common law system are conscious that what they do in any one case is one step in a continuing process of legal evolution and revision. They are conscious, too, that it is only one step: as Barwick said in Strickland v Rocla Concrete Pipes (1971), ‘the law develops case by case, the Court in each case deciding so much as is necessary to dispose of the case before it’.
Yet how broad or narrow a proposition should be to supply the foundation that is ‘necessary’ for a particular decision is a question on which judicial perceptions may differ (see Ratio decidendi); and in any event, the reluctance to pronounce upon matters not immediately ‘necessary’ is no more than a canon of judicial restraint, with varying weight for different judges or in different cases. If judges have to guard against unduly wide propositions, it may also be necessary to guard against unduly narrow ones. In Actors Equity v Fontana Films (1982), Mason, having decided that the challenged legislation was valid on a relatively narrow understanding of the corporations power, added that he would not ‘wish it to be thought’ that the power was confined to that narrow scope, and proceeded to outline a broader conception of what he understood to be the power’s essential content. Brennan, on the other hand, expressly refrained from committing himself to any view of the broader question either way:
Hewing close to the issues raised by each case, the Court avoids the possibility of having its judgment applied to issues which were not envisaged in the arguments before it and which may have implications emerging only in the future. The development of principle from the concrete issues of particular cases may be slow, but it gives assurance that the principle will not be unsuited to the solution of practical problems. It follows that it is undesirable to answer a question left open in an earlier case unless an answer is evoked by the issues in the case in hand.
In 1986, Justice Shirley Abrahamson of the Supreme Court of Wisconsin told Australian interviewer Garry Sturgess:
I like to compare writing an opinion with writing the next chapter of a book that has already been written … We do not write the final chapter, we just write the next scene, and then the next opinion writes another scene, and so it goes. And forever in the law there is this movement …; the law is stable and yet law changes to meet societal needs.
The same idea has been developed more fully by Ronald Dworkin (Law’s Empire (1986)). Lawrence Lessig (‘Fidelity in Translation’ (1993) 71 Texas LR 1165) offers a different metaphor: the judge’s reformulation of the existing legal materials is like translation from a foreign language. Just as the translator has to adapt the original text to the needs of a different language, so the judge in interpreting an authoritative text must adapt it to a new context—either because of new factual circumstances, or because the underlying presuppositions and values have changed. At the same time, in adapting the original text to its altered setting, the translator-judge must still observe the requirements of fidelity to the original.
Yet these analogies understate the complexity of the interpretive processes involved. The legal materials are intensely intertextual: each judgment to be interpreted itself contains interpretations of many other judgments or statutory provisions, which may or may not be directly relevant to the case at hand. Lessig’s translator-judge must interpret not just one existing text but a multitude of texts, whose meanings must be adjusted to each other as well as to the needs of the instant case. Dworkin’s chain novelist is not simply writing the next chapter in a single unfolding story, but is drawing together and seeking to harmonise a multitude of plot lines tied together only by the legal conception that the judge is trying to discern.
The legal issues to be determined, along with the relevant precedents and their relevant interpretations, are usually identified for the Court by the arguments of counsel—though occasionally an issue may be raised from the Bench, like the inconsistency issue in Hume v Palmer (1926) (see Knox Court and arbitration) or the retrospectivity issue in the War Crimes Act Case (1991). Occasionally, too, a Justice will simply adopt counsel’s argument, restated in the Justice’s own words. But, almost always in the High Court, the opposing arguments will present alternative lines of reasoning, drawing on different precedents or different interpretations of the same set of precedents, with opposite results. When the arguments are equally persuasive, the Court must choose between them; and even if a Justice finds one view clearly more persuasive, the explanation of reasons for the decision should include an explanation of why the alternative argument fails.
Because judicial reasoning must always be grounded in the existing legal materials, it lends itself to analysis in terms of legalism. Because the existing materials must always be reinterpreted in a way that entails choices between alternatives, guided by different perceptions of how best to serve the functional needs of society or ensure just outcomes, the process lends itself to analysis in terms of realism. The precise balance that would give the most coherent account of judicial reasoning has yet to be found. One reason it is elusive is that no two judges strike quite the same balance.
- Tony Blackshield, ‘Five Types of Judicial Decision’ (1974) 12 Osgoode Hall LJ 539
- Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1961)
- Neil MacCormick, Legal Reasoning and Legal Theory (1978)
- Julius Stone, Legal System and Lawyers’ Reasonings (1964)
- Julius Stone, Precedent and Law (1985)