Re-examining the Judicial Funciton

Abstract

Courts throughout the common law world are under increasing social, political and economic pressure. Too often portrayed as mere private dispute resolvers, the public good performed by courts as vital institutions of governance is commonly sidelined. There is, in such an environment, an increasingly pressing need to explain what it is that courts actually do; to articulate precisely the function of a judge. This article presents a systematic and coherent articulation of that judicial function, with its unique institutional blend of dispute resolution and social governance. This article develops a taxonomy for the systematic characterisation of dispute resolution methods generally, which clearly delineates the judicial form of dispute resolution. Following, it outlines how dispute resolution mechanisms can operate as tools of social governance, and explores specifically how the judiciary operates as such an institution. The expansive articulation of function set out in this article moves beyond a cursory description of the judicial role. It seeks to fully explore the limits, constraints, and purposes of the judicial role as seen from within the legal system.