A psycho-ethical theory of the Maltese judicial process: an attempt to define the role of the courts, the judge and binding precedents within a general view of juridical power

Abstract

The main purpose of this thesis is to define the judicial role, in such a way that a coherent and comprehensive theory of decision making by Courts is ultimately evolved. Despite its chief preoccupation with the administration of Justice by competent judges, endowed with an instinctive sense of Justice and Injustice, it will be seen that it is impossible to ignore the common psychological tendencies of persons enjoying Governmental and Legislative power and judges, all of whom must be in possession of a strong alertness to human right and wrong; licitness and illicitness, legality and illegality. The law is but a progression from the juridical starting point of behaviour, according to models of morality and psychology. Unless this psycho-moral foundation is acknowledged by the legislator, the law is doomed to fall to disrepute after acquiring the status of institutional aggression. That law must be psychologically valid is the sine qua non condition for the administration of justice. The psychological view of the judicial process will be witnessed exerting an influence upon the extremist positions currently upheld by jurists i.e. those pursuing the traditional approach of incessantly attempting to discern the intention of the legislator and those asserting the Realist position that the only law that exists is that enunciated by the Courts in their judgements. The first approach denies any identity to the judicial function; while the same consequence is imputd to the Legislature’s will by Realist thinkers, who taint law with the inherent defect of disutility. What is suggested is a compromising solution which devises a substantial allowance of creative interpretation to the judge, who is justified in exercising discretion sometimes in defiance of an isolate provision of law owing to his position of greater proximity to human conduct. The mode of identity of the three basic constitutional powers prescribes of necessity that certain situational facts are utterly inescapable of legislative foresight because they emerge from a combination of juridical issues, rather than from one single issue, incorporating a distinct value sanctioned by law. This leads to the definition of a ‘question of fact’ and a ‘question of law’, within a general value-perspective of the judicial process. Here, a legal provision containing a precept of substantive justice is equated with the sanction of a distinct moral value; very often found accompanied by many other facts, themselves juridically relevant, in the concrete case (Chapter IV). The psychological attitude to the judicial process leads to the predominance of certain factors, constituting the phenomenon of creative interpretation (referred also in my thesis as the autonomy of judicial value). These factors include the acceptability of a limited notion of interpretation contra legem the juridical nothingness o the developments of the Jus Singulare due to the superseding relevance of hardship, bona and mala fide, and utility; and finally an dispensable prominence to discretionary justice specifically conferred by law. […]