the results of a search of Canadian case law from 1860 to 2016 to determine which major philosophers (born before 1900) were cited most and least often (or never), as well as which judges and courts cited them. The survey indicates that judges from every level of the Canadian courts have, over the years, made explicit references to major philosophic figures in their decisions. Many of the citations deal with eminently practical matters, but the courts have also thought it beneficial to call upon the philosophers for a variety of more strictly “philosophic” notions, for example, Thomas Aquinas on the doctrine of free will, and Bertrand Russell on logical constructions. Who cites whom and in what context and jurisdiction is set out in detail. ...
The 543 citations containing either the wording or ideas of the philosophers named above emanated from only 300 specific judges in their pertinent courts. Some of them may cite only one philosopher in a lifetime of decision writing, while a much smaller number cite philosophers several times (defined here as three or more times in their decisions.) For example while justices of the Supreme Court of Canada cite John Stuart Mill more than any other philosopher, Aristotle is the favourite of the Federal Court and Jeremy Bentham appears most often in Alberta judgments.'Backdoor use of philosophers in judicial decision-making? Antipodean reflections' by Karen Schultz in (2016) 25(3) Griffith Law Review 441-470 comments
The citation of philosophers in common law judicial decision-making has been rarely explored. Yet this issue divided two American commentators: Rao, in 1998, critiqued the United States Supreme Court’s (USSC) citation of philosophers, labelling it a ‘backdoor method for judicial policy making’; Brooks, in 2003, offered a trenchant rejoinder, arguing that philosophy is potentially an ‘ally in the pursuit of sensible legal reasoning’. As issues of the curial use of exogenous or extra-legal knowledge are not settled, there is value in reflecting on Australian judicial practice. This article proceeds in three stages. First, it locates Rao’s analysis of the USSC’s citation of philosophers within a larger picture that concerns issues of citation analysis. Second, it critiques Rao’s definitions of philosophy and adjudication in terms of three ‘antipodal pairs’ of characteristics – pragmatism versus abstraction, institutionalism versus intellectualism, and precedent versus permeability. Third, rejecting Rao’s thesis, this article conducts an exploratory survey to consider how the Australian High Court cites the named philosophers in Rao and Brooks’s surveys.Schultz argues
Dworkin queried ‘[m]ay a judge properly appeal in his [sic] opinions to the philosophical doctrines of Immanuel Kant or … the philosophical writings of John Rawls?’ Whether the citation of philosophers in common law adjudication is appropriate has been rarely explored, perhaps because the answer seems obvious in practice – law and philosophy appear to be at least semi-autonomous domains, and philosophers’ works are not traditionally regarded as legal authority or knowledge. Yet this issue of the judicial citation of philosophers divided two American commentators: Rao, in 1998, critiqued the citation of philosophers in the United States Supreme Court (‘USSC’); Brooks, in 2003, offered a trenchant rejoinder. The trigger for Rao’s analysis was the USSC’s explicit disregard of the Philosophers Brief, an amicus brief authored by six ‘stellar’ philosophers arguing in favour of assisted suicide – the USSC upheld states’ rights to ban assisted suicide, and ostensibly ignored the Brief. The issues animating Rao and Brooks’s arguments concern the curial use of exogenous or extra-legal knowledge, and are not settled or exclusively American. There is value then in reflecting on Australian judicial practice in light of these arguments.
To examine the judicial citation of philosophers, this article proceeds in three stages. First, it briefly canvasses broad features that characterise the USSC and Australian High Court as final appellate courts, and then locates Rao’s analysis of the USSC’s citation of philosophers within a larger picture concerning issues of citation analysis. Second, it critiques Rao’s definitions of philosophy and adjudication in terms of three ‘antipodal pairs’s of characteristics – pragmatism versus abstraction, institutionalism versus intellectualism, and precedent versus permeability. These definitions are central to Rao’s thesis that the judicial citation of philosophers is a ‘backdoor method for judicial policy making’; aspects of her definitions of both philosophy and adjudication are targeted as she moves her focus from the curial citation of philosophers to philosophy. Brooks’s rejoinder to Rao is preferred – he argues that philosophy is inadequately defined by Rao, is not incommensurable with adjudication, and is potentially an ‘ally in the pursuit of sensible legal reasoning’. Third, rejecting Rao’s thesis that the judicial citation of philosophers is a ‘backdoor method’, this article considers how the Australian High Court cites the named philosophers in Rao and Brooks’s surveys. Typical citations appear in supplementary statements, throwaway lines, and cautionary words. As this exploratory survey demonstrates, the High Court’s citation of philosophers is constrained, preserving judicial institutional limits. Admittedly, Rao’s analysis has much to commend it and, ultimately, she appears to reach a conclusion less inimical to curial citation than her initial attack foreshadowed. However, aspects of her content and method attract comment and critique.