Judicial Reasoning

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 ones 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 Courts 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 lawappellate 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 jurys 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 Courts
original jurisdiction, the need to establish the relevant facts is even less importantat 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 principlesnot 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 understoodand
when it is understood, it may often provoke negative reactions. As Mason observed extra-
judicially in 1988:
Precedent brings in its train corresponding detrimentsa 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 diverseranging 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-makingin 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
ordersometimes explained in terms of the coherence or consistency of the legal system,
sometimes more pretentiously in terms of its integrity or pattern maintenanceis part of the
Courts 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 decisionor more frequently, as George Paton
suggested in 1946, a series of decisions plotting the points on a graphwill 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
materialwhether or not it was so perceived by the precedent judgewhich 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 judges 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 powers 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 ( Laws Empire (1986)).
Lawrence Lessig (Fidelity in Translation (1993) 71 Texas LR 1165) offers a different metaphor:
the judges 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. Lessigs 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. Dworkins 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 counselthough
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 counsels argument, restated in
the Justices 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