Date: Wed, 30 Jul 2003 09:21:21 +1200

From: Allan Beever

Subject: Insurance et al

Actually, I never mentioned formalism and didn't take myself to be defending it in my email. The point was that you seemed (perhaps I was wrong) to be arguing that insurance was relevant because it is an important issue to society.

To ignore insurance is to pretend that we live in a world very like ours but without insurance - a fiction. And it is a confusing fiction, as it is never explained whether we are to pretend that the idea of insurance never occurred to anyone, or that the problems that insurance solves never existed or were never perceived as problems, or what.

This was not Harold's view who had a quite different argument to which I responded earlier in the email. However, I think that Andrew Robertson did support this view:

Judges routinely take into account the broader implications of decisions and rarely have any empirical evidence as to what those social consequences will be. 'Armchair empiricism' is therefore inevitably part of the judicial function.

This is not, then, a straw position and nor was I guilty of asserting a false dichotomy.

But, if it is true that insurance is relevant because it is important to society, then why is it not the case that all important issues to a society are relevant? The answer to this cannot be that such and such (eg traffic congestion) isn't important, because, of course, we disagree about what is and what is not important. Now, there may be a good reason why insurance is relevant while other socially important issues are not, but that reason is for supporters of the relevance of insurance to supply.

Allan

On 29/7/03 9:51 PM, "Steve Hedley" wrote:

I can certainly agree with Allan's last comment, that an adequate statement of the formalist position would take a book or more. Some brief comments on why such a book is sorely needed, if that position is to be taken seriously. It seems to me that Jason and Allan are attacking straw men.

Throughout, they have suggested that the non-formalists (?informalists) acknowledge no limits to the considerations that a court should take into account - that we are "trying to make a better world" without reference to established doctrine, that we want to "abolish[..] law or at least appellate courts", and so on. Yet there is nothing in the posts to which they are replying to support any such position. They are, I suppose, using a slippery slope argument:- "If you people can take into account insurance (or whatever), what is to stop you taking into account anything you choose?". In fact, however, no such anarchy appears in the opposing argument, no-one has been unwilling to set limits. It is simply that our limits are broader than those allowed by the formalists, and that we are more reluctant to dogmatise on what the limits should be.

Equally with separation-of-powers arguments. Nothing said against the formalists denies that there is such a separation, or that there are some jobs that judges can't or shouldn't do. Again, there is the false argument "you must choose between the formalist position and complete anarchy". In particular, does Allan *really* mean to argue that because the executive does social research, and does it better than the judges ever could, *therefore* the judiciary should ignore the products of such research? This certainly reads like a non sequitur - I think the book of which he speaks will need to be a long one if it justifies arguments such as this.

There are also repeated attempts to insinuate that infomalism is a modern vice, that it departs from established tradition. Yet no serious historical case to that effect has been made, and it is hard to see how it could be made. In all periods, a certain amount of attention is paid to the social consequences of doctrine - the amount varies and indeed the types of consequences vary, but that is another matter. What we informalists are arguing for is what some judges have always argued for; there is no "golden age" of formalism to return to.

The formalists, therefore, are really not so different from the rest of us as they would have us think. The real difficulty I have is not that I reject the formalist case - I do not get to that stage. The difficulty is in making sense of the formalist proposal. What does it *mean* to judge matters simply as between the parties, ignoring other considerations? Neither party is an island, and most lives can have only a limited meaning without reference to other people. There is no such thing as a major accident affecting *only* the injured and the injurer - others are necessarily dragged in. To isolate the parties from the world in which they live, to ignore all the other societal support mechanisms designed to deal with their predicament - this is to encourage judges to ignore plain facts, and the label "fiction" is quite properly applied to it.

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