The nature of judicial power

Abstract

This article shows that there is much to be learnt about the constitutional nature of judicial power from the way judges decide ordinary cases (for example, contract cases). The author argues that in all cases judicial power is defined by the absence of discretion. Discretion always proposes a partiality of choice. Since judging is an impartial function, discretion is inconsistent with judicial power. The common law, itself, is a function of judicial impartiality: so deeply engrained in the common law is the absence of discretion that it is possible to express the substantive content of the common law as nothing more than judicial impartiality. Because of this impartiality, judicial power is the critical point of entry for free humans into the political bond. The ultimate point of politics is not a social contract. It is the judicial power, whose impartiality is of a quality to receive free commitment.