JUDICIAL DECISION-MAKING AND SOCIAL JUSTICE I INTRODUCTION The judiciaryâ€™s collective reputation for impartiality and independence is vital in maintaining the perceived legitimacy of judgesâ€™ decisions. According to Sir Owen Dixon, this necessitates judges to accept that they should exercise their power via the techniques of legal reasoning. Despite the general consensus on the importance of judicial independence, particularly from executive interference, there has been increasing criticism aimed at the extent to which judges consider issues relating to social justice in the decision-making process. In the words of the UN, Social justice is about equality and fairness between human beingsâ€¦ We advance social justice when we remove barriers that people face because of gender, age, race, ethnicity, religion, culture or disability. This essay argues that although legalism may lead to social injustice, the High Court should not supersede its constitutional mandate by treating the Constitution as an instrument for promoting social justice.
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Although the Court can refer to and provide advice for other action to be taken to break down barriers to fairness, such considerations should not influence its ultimate decision. On the other hand, the High Court does, and should, have the ability to develop the common law to reflect social justice and change. II DIXONIAN LEGALISM AND THE HIGH COURT Dixon contended that resolving federal disputes by committing to the spirit of legalism is crucial in maintaining public confidence in the judiciaryâ€™s ability to ensure that the rule of lawâ€™s underlying values of certainty and predictability are preserved. This emphasis on the consistent and strict application of legal concepts is characterized by the western legal tradition. The western idea of law as an autonomous discipline has illustrated that, despite the cultural forces that shape and dictate the content of the law, legal reasoning and decision-making are sufficient without supplement from other disciplines and societal ideologies. Conversely, a rigid adherence to legalism could risk serious social injustice. This is because such an approach entails judges to undertake legal reasoning without any evaluation of the implications on social issues and community necessities. Although the Justices of the Court profess to operate in a political and social vacuum, it can also be argued that their legal arguments are invariably premised on judicial biases and presuppositions. Consequently, anterior injustices and obsolete principles may be perpetuated by the conservatism of the Court. Some may opine that judges should deliberately account for issues relating to social justice to offset the Courtâ€™s reputation for excessive legalism, but the value of the High Court lies in its appearance of independence. While it is undeniable that the judiciary retains some law-making power, expressly digressing from legality and making illegitimate decisions to promote popular political views or the principles of social justice would place the judiciary in the realm of the Parliament and create an overly-politicized court system.