The judicial dialogue

Abstract

A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/ rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage in a continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically.

Judicial independence: The master narrative in sentencing practice

“…Much has been written about the extent to which the power of law, and particularly criminal law, relies on elements of performance, imagination and symbolism. Rieke (1991 :43) notes that despite the aura of mystery created by judges’ robes, raised benches, wigs and ceremony, judges ‘do not at once acquire extraordinary powers of reasoning and molt their humanity’ simply through the act of being ‘elevated’ to the bench. For Kahn (2006a), the performativity element of the judicial role is directed at stabilizing the position of law in a ‘highly contested symbolic field’.…”