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The role of courts in the making of policy

Guest, S.; (2006) The role of courts in the making of policy. University of Queensland Law Journal , 25 (2) pp. 307-328.

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Abstract

Should judges make policy in the wide sense of making decisions that place more weight on the good of the community than on the rights of parties to litigation? It is argued here that we can only properly understand judging through an appreciation of an ideal account of the judicial role. That account requires us to ensure fair dealings between litigants in the light of the moral values fundamental to democracy; we best express that idea through the rights of individual litigants to equality of respect. It is therefore an unsurprising conclusion that judges should confine themselves to the determination of the rights of individuals in dispute. More significant, however, is that this account allows judges to determine an individual's right by reference to the impact it would have on the community, but prohibits a judge from deciding an individual's right by reference to an enhanced state of the community to which no individual has a right. Where 'policy' refers to this last kind of justification of a judicial decision, them it is contrary to the judicial to make decisions of policy.

Type:Article
Title:The role of courts in the making of policy
Publisher version:http://www.law.uq.edu.au/previous-uqlj-editions#vol25numb2
Language:English
UCL classification:UCL > School of Arts and Social Sciences > Faculty of Laws

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