Uncommonly Common: The Nature of Common Law Judgment

Abstract

What is the difference between "judge-made law" and the laws created by an elected assembly‘ The purpose of this paper is to investigate this question by addressing the differences and similarities between common law judgment and political judgment. I contend that there is something distinctive about common law judgment. This distinctive nature is the result of the different ground of validity of legal and political decisions. Legal judgment has a distinct ground of validity. This validity derives from two aspects of common law judgment: the impartiality of the decision-maker and the critical function built into common law reasoning itself. I articulate this view by drawing on Hannah Arendt's lectures on Immanuel Kant's Critique of Judgment, as well as on the work of theorists such as H.L.A. Hart, Ronald Dworkin and Joseph Raz. I also discuss Canadian and U.K. cases in which judges address their role and explain their views on precedent, the need for judgments to respond to the arguments of the parties, and the importance of law adapting to the constantly changing circumstances of the modern world.

Keywords: precedent, common law, political judgment, Arendt