ABSTRACT
The popular perception of the judicial process is described by David Kairys as government by law, not people, together with the understanding that law is separate from, and superior to, politics, economics, culture and the values and preferences of judges. This perception is based on particular attributes of the decision-making process itself, which Kairys suggests comprises, among other things: the judicial recognition of their subservient role in constitutional theory; their passive role in the operation of the doctrine of precedent; their subordinate role in the determination and interpretation of legislation; and the ‘ quasi-scientifi c , objective nature of legal analysis, and technical expertise of judges and lawyers’ ( The Politics of Law: A Progressive Critique (1982)). To the extent that law is generally portrayed as quasi-scientifi c, the operation of objective, technical and hence supposedly neutral rules, to that degree, the decisions that judges make are accepted as legitimate by the public. It is necessary, therefore, to consider the nature of reasoning in general and the extent to which judges make use of such reasoning, before considering the social location of the judges. It is only on the basis of the nonexistence of distinct and strictly applied principles of legal reasoning that the existence of judicial creativity and the possibility of judicial bias come into consideration.
