Recently, the High Court has been criticised for its supposed increasing tendency to deliver multiple majority judgments. Ostensibly this impairs the capacity for the Court to clarify and unify the law, thereby making it more difficult for citizens to plan and coordinate their affairs. This criticism of the High Court is unsound. First, there is no evidence to suggest that the High Court is now more fragmented than it has been during other periods of its history. Secondly, the precise reasoning process (and the underlying jurisprudence reflected by this) is a cardinal aspect of the development of precedent and legal principle. Convergence in conclusion only is of little utility and does not promote certainty and clarity in the law. One cannot make an informed assessment of the impact and breadth of a decision without an understanding of the (actual) premise underpinning the decision. It is for this reason that legislation is such a poor vehicle for declaring the law and why in recent decades there has been an increasing degree of reliance on extraneous material to assist in the interpretation of legislation. Conclusion without (genuine) reasons is not highly instructive. Coerced agreement, no matter how subtle, is undesirable. The High Court should resist calls to deliver more single majority judgments.
Field of Research
180120 Legal Institutions (incl Courts and Justice Systems)