Between Monster and Machine: Rethinking the Judicial Function
South Carolina Law Review, Vol. 51, P. 183, Fall 1999
Posted: 11 Jan 2000
The way in which the judicial function is conceptualized has overarching implications for law and legal theory. Yet judges and legal scholars have been unable to construct a coherent and believable characterization of the judicial process or generate an adequate aspirational model for judging. This essay maintains that such questions cannot be meaningfully tackled without an appreciation of the jurisprudential threats that judges themselves perceive as circumscribing their work. It begins by examining two vivid and recurrent metaphorical images?-the monster, and the machine?-which have been used repeatedly in judicial opinions to express what judging should not be. These two pejorative images together represent precisely what is most disturbing and problematic about the work of judging, and correspond to the twin dangers of runaway discretion and complete preclusion of discretion. Taking these jurisprudential threats as starting points, I consider the inherent tension between rules-based and discretionary models of judging. After critiquing two alternative formulations of the work of judging that have gained currency--the metaphor of balancing, and the chain-novelist approach suggested by Dworkin-?I consider how the judicial function might be more meaningfully reconceptualized.
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