Justiciability
| Published date | 01 September 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00729.x |
| Author | Robert S. Summers* |
| Date | 01 September 1963 |
JUSTICIABILITY
THE
essay by
Mr.
Geoffrey Marshall
on
the subject of
''
Justici-
ability
"
is one of the most stimulating essays in the recent volume,
Oxford
Essays
in Jurisprudence,
edited by
Mr.
A.
G. Guest.
Marshall's essay might be viewed as a brief defence of the thesis
that only the legislature
in
England should decide what issues are
justiciable,
Le.,
peculiarly suited to judicial solution. Although this
thesis has
been
controversial,
it
is
not my
aim
to question
it.
My
purpose is to comment
on
the essay as a jurisprudential essay
on
the concept of justiciability.
In
so
far
as Marshall analyses and
evaluates alternative modes of settling disputes, his efforts constitute
a
contribution to the study of important forms of social order, a
study which Professor
Lon
L.
Fuller of the Harvard Law School
has recently
called
a much
"
neglected
yy
branch of jurisprudence.'
One of the principal functions of a legal system is to provide
methods
of resolving disputes. Legislatures,
courts,
administrative
tribunals, ministers
and
"
local
"
government units all resolve
disputes
in
the Anglo-American legal systems.*
Of
the many
kinds
of
disputes
resolved
daily through these
"
modes of settlement,"
which
are
more suited to solution by one mode than to solution
by others? More specifically, which are peculiarly suited to
"
court
settlement," and which
are
not? The circumstances in
which this question might arise
vary,
and the form of the question
sometimes differs accordingly. For example,
a
legislature might
want
to
know
whether
it
should establish an administrative tribunal
to
administer a policy, or should, instead, embody this policy in a
1
Faller,
"
henan Legal Philmphy at Mid Centnry
"
0964)
6
J.
Legal Ed.
467,
477.
Another eminent hencan legal
scholar
has
recently said that
"To
serve the general society, legal research needs some new directions
of
emphasis. We should study the separation
of
powers from the standpoint
not
of
formal distinctions but from the Standpoint
of
function. What are the
distinctive jobs which the judicial, legislative and executive branches of
government are
fitted
by their respective institutional characters
to
do?"
Hurst,
"
Perspectives
Upon
Research into Legal Order
"
(1961)
Wis.L.Rev.
366,366.
f
"
Private
"
settlement through negotiation, arbitration,
"
agreement to dia-
agree," and other means, constitutes an additional significant mode of settle-
ment which it is not my purpose to consider herein. The question whether
a
class of disputes is more suited
to
"private
"
settlement than
to
settle-
ment through the legal system is
a
question that must be ry!olved before the
issue
of
the suitability of these disputes
to
alternative public" modes
of settlement arises. Of course, the suitability of these disputes to one
or
more public modes
of
settlement
is
relevant
to
a
determination that such
disputes either ought or ought not
to
be removed from the domain of private
settlement. Consider, for example, whether
a
court should decide iaaues that
arise in the course of contract negotiations and ultimately prevent the parties
from contracting. Can
a
court
satisfactorily substitute its judgment for
the judgment of those best qualified to determine the adequacy of an exchange?
580
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