Justin Malbon (Monash University – Faculty of Law) has posted Judicial Values (APPEALING TO THE FUTURE: MICHAEL KIRBY AND HIS LEGACY, pp. 579-606, Thomson Reuters, 2009) on SSRN. Here is the abstract:
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This chapter examines the application of judicial values, or “extra-legal” reasoning, in a number of decisions by former Australian High Court Judge Kirby. The chapter is interested in Kirby’s judicial policy norms and values as expressed in his judgments. It is argued here that critics are ready for judges who openly mention the extra-legal considerations upon which they base a ruling, often accusing them of acting politically or unduly imposing personal inclinations and prejudices on the ruling. These critics, however, miss the point. The issue is not whether judges should use extra-legal analysis, it is how they use that analysis. What should be at issue are the unquestioned and unverified assumptions and presumptions that underlie extra-legal reasoning. The analysis of a number of Kirby’s judgments seeks, in part, to enliven a broader debate about the extra-legal reasoning of judges