Abstract
This article considers how postmodernist thought can illuminate the doctrine of judicial notice. Specifically, it considers how postmodernist critiques of empiricism have challenged the idea of ‘indisputable’ facts which inform judicial decision-making. It argues that, while the practical realities of judicial administration must be borne in mind, increased sensitivity to the arbitrary nature of notorious facts will lead to more accountable decision-making.
Highlights
In 2006, Susan Crennan delivered a speech entitled ‘Postmodernism and the Law’
Crennan’s thesis was that ‘postmodern social critique ... has an influence which has gone beyond the universities and is certainly to be felt in the law’
Tasked with explaining cultural theory in the wake of Marx to a group of Herbert Smith Freehills litigators, she was perhaps justified in taking a broad-strokes approach. Notwithstanding, her speech stands as an important call, largely unacknowledged within conventional legal circles, for interrogation of the law’s doctrines and institutions within the framework of postmodernist thought
Summary
Judicial notice is the principle that a court can find that a fact exists, despite that fact not being proven under the rules of. Judicial notice has limited scope with regard to adjudicative facts since a trial turns on the evidence provided for and against the points in issue. Isaacs J proposed two ‘sub-classes’ of legislative facts.. Isaacs J proposed two ‘sub-classes’ of legislative facts.9 The first includes those which the judge decides after independent inquiry. The process behind these facts is generally more visible. The second includes facts which judges rely on without the need for further inquiry. This covers any fact which is ‘so generally known that every ordinary person may be reasonably presumed to be aware of it’.11. This article focuses on this second class of notorious fact, since they are relied upon in judgments without any stated justification
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