Past, Present, and Justice in the Exercise of Judicial Responsibility
26 Pages Posted: 21 Dec 2017 Last revised: 11 Dec 2018
Date Written: December 21, 2017
Reflecting on the foundations of legislative and adjudicative responsibility helps articulate the responsibility of the legislative body for the community’s future, a future to be directed by the law as it is now to be. By contrast, the power to adjudicate conclusively on the breach of a law discloses a responsibility of a different orientation, a responsibly to relate to the present dispute the law as it was at that time past when the violation of the law allegedly occurred. This basic division of responsibility — for the community’s future; for relating the community’s past acts to present disputes — is a division informed by the need to address different needs in human communities. Among those needs will be the requirement to realise justice and rights. A community may qualify as a matter of legal jurisdiction the changes a legislature may introduce for the community’s future and confer on a court the power to determine when legislation exceeds the legislature’s jurisdiction. Where those qualifications are open-ended — as they are in many bills of rights — the exercise of judicial responsibility is partially unmoored from the past and open to the future. In such circumstances, adjudicative authority is being exercised, not with a view to the past, but to the future. It is here that the institution designed to take responsibility for the future may understand itself to be empowered to reply to the exercise of judicial responsibility by engaging in a dialogue on the community’s future.
Keywords: legislature, legislation, court, adjudication, dialogue, bills of rights, constitutional rights, separation of powers, HLA Hart, Rule of Change, Rule of Adjudication
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