Practical muddling along

As a description of the incremental, intuitive decision-making of judges in general, the title to this chapter is not unduly harsh. It is taken from Charles Lindlom's article, ‘The Science of Muddling Through’. Harsh or not, it is apt. To decide cases that usually make law and often formulate policy on the basis of an intuitive conception of the judicial role that, at best, only begrudgingly acknowledges the reality of judicial autonomy, and to act as if discredited and out-of-date theories still prevailed, is to muddle along. The trend to a better judicial order is there, but it is incomplete.

At the turn of the twentieth century a basic form of positivism dominated legal thinking. The law was perceived as a closed and cloistered edifice, an independent and autonomous discipline, and a sovereign, self-contained system of internally rational and predictable rules to which the judge, having no or little discretion, would mechanically apply deductive reasoning. Such dogmatic formalism embraced the declaratory theory of law and fostered the belief that the law could be determined with quasi-mathematical precision. Idolatry of certainty and predictability in the law displaced the search for justice and relevance. Justice, if justice was to be done, would be systemic – the product of adhering to rules and form. Fastidious adherence to the doctrine of precedent overwhelmed the emphasis that the judges of old accorded underlying principles and reinforced the technical and linguistic purity of the formalism that prevailed.