Republicanism, Community Values and Social Psychology: A Response to Braithwaite's Model of Judicial Deliberation

Abstract:     
This article is concerned with the judicial practice of justifying decisions by reference to community values, a practice supported by prominent Australian judges (including the for-mer Chief Justices of the High Court, Anthony Mason and Gerard Brennan) and academics in Australia and overseas. This practice has proved particularly attractive to activist judges, perhaps as a means of lending democratic legitimacy to their decisions. In 1995, it was de-fended by John Braithwaite, the internationally recognised criminologist, through the con-struction of a model of judicial decision-making. By drawing upon social psychology and a republican model of judicial decision-making, I uncover problems with Braithwaite's model which were not pointed to in earlier critiques. I also throw light more generally upon this ju-dicial practice.

Keywords: republicanism, community values, community consensus, judicial decision-making

Accepted Paper Series