Judicial Discretion in Private Law – a Commentary

Abstract

With reference to jurisprudence across the Commonwealth, Professor Graham Virgo argues that ‘rule–based’ approaches to justice and ‘discretionary’ approaches to justice need not be in stark opposition.1 Instead, a reconciliation is possible. This involves the identification of rules which can be modified by the application of recognised principles in certain circumstances.2 Such modification imports a degree of judicial discretion. Views of the legitimate scope of discretion in judicial decision–making are necessarily informed by conceptions of the meaning, role and place of private law itself. For example, an instrumentalist conception of private law (as a means to achieve social, economic and other ends) will tend to license ‘strong’ discretion, and indeed judicial activism, so that, for example, there is no necessary correlation between a ‘right’ and a ‘remedy’ in respect of that right. On the other hand, a conception of private law as an end in itself (such as the conception of corrective justice)3 will tend to advocate ‘weak’ discretion so that, for example, there is a correlation between a ‘right’ and a ‘remedy’. This brief commentary cannot hope to address these fundamental issues, or even all of the issues that Professor Virgo raises either directly or indirectly. Instead, it will focus on the examples with which Professor Virgo has illustrated his thesis: the illegality defence, and the constructive trust (remedial and institutional).