19 U. Notre Dame Austl. L. Rev. 1 (2017)

handle is hein.journals/undauslr19 and id is 1 raw text is: 






DO   JUDGES MAKE LAW?*


                          THE HON  JUSTICE MICHAEL   BARKER''



Unusually, for me  at least, I would like to commence   this lecture with a reading from
Scripture; more particularly from what Christians call the Old Testament - from Judges 4:4
and 5:

       And  Deborah, a prophetess, the wife of Lapidoth, she judged Israel at that time. And
       she dwelt under the palm tree of Deborah between Ramah and Bethel in mount
       Ephraim: and the children of Israel came up to her for judgment.'

It seems this involved a personal approach to judging, something that was common in those
distant times in both the Jewish and Arabic worlds.

Recently, I was at the Alhambra  in Granada, the palace and fort of the Moorish rulers of
Spain  for hundreds of years until Queen Isabella I and King Ferdinand II expanded their
northern and  eastern kingdoms  and expelled them  from  Spain in 1492.  I found myself
standing in the famed   Court of Justice. Here, the ruler is said, like Deborah, to have
personally heard and resolved the disputes of his subjects.

From  such direct decision making by rulers and judges, the expression palm tree justice
seems  to have grown, especially during the 1960s in England. It was an expression I became
familiar with when I commenced  law school in 1968. No real judge would dispense palm tree
justice, was the clear message. In making  a judgment,  he  or she would  always  follow
precedent, apply settled legal rules, and never appeal to broad community  principles or
values, or simply decide where the justice in the dispute appears to lie.

My  topic for this evening's lecture concerns this debate about judicial method. I have sought
to reduce it to the question, Do judges make law? Do they simply legislate from high, or
under a palm tree; or do they, in a more mechanistic way, simply seek to divine the resolution
of disputes by identifying settled principles and applying them to the facts of the case at hand;

* This article is a slightly edited version of the David Malcolm Memorial Lecture 2017 delivered by Justice
Barker at the Notre Dame University Law School in Fremantle on 26 October 2017.
** LLB(Hons) (UWA), LLM (York University, Canada); Justice of the Federal Court of Australia, Perth.
1 The Holy Bible, King James Version (Thomas Nelson, 1984) Judges 4:4-5.
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