Owen Fiss

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In this posting, I want to look at the work of the American scholar Owen Fiss. Fiss’ work is useful as it gives us a useful way of thinking about the role of the judge in the common law system. In particular, his work outlines the limits on judicial law making, and the role that judges play in a democratic polity. Fiss has argued that:

“[the] [j]udges “capacity to make a special contribution to our social life derives not from any personal traits or knowledge, but from the definition of the office in which they find themselves and through which they exercise power. That office is structured by both ideological and institutional factors that enable and perhaps even force the judge to be objective - not to express his preferences or personal beliefs, or those of the citizenry, as to what is right or just, but constantly to strive for the true meaning of the constitutional value. Two aspects of the judicial office give it this special cast: one is the judge's obligation to participate in a dialogue, and the second is his independence.”1

Fiss means that the ‘office’ of the judge defines the role and function of judging. In other words, a judge is constrained in his/her decision making by the constitutional position that defines his/her powers. Note, however, that this is not a description of a narrow institutional position: a judge contributes to the meaning of “our social life.” We want to develop these points in a more depth.

Fiss is not denying that the law making power of judges is linked to their discretion. Judicial argument over the nature of rights, for instance, takes place in a ‘space’ where different interpretations of the law are possible and different values compete. His main point is that – whatever the interpretation, and, indeed, whatever the values that inform interpretation, they are to a significant extent defined and limited by the institutional requirements that law itself is rational and structured. This does not prevent...
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