University of New South Wales Faculty of Law Research Series
Last Updated: 18 September 2012
Judicial Diversity: Is Disagreement a Positive Objective in Law?
Andrew Lynch, University of New South Wales
This paper is available for
download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145298
This paper was presented at 2012 International
Conference on Law & Society, Honolulu, USA, June 5-8. This paper may also be
as  UNSWLRS 41.
Calls for courts to be more representative of society
rarely acknowledge the complex relationship between judicial diversity and
in multi-member courts and what this says about our normative
understanding of law as an institutional and social phenomenon. This
address diversity’s possible impact upon legal systems beyond mere
representation. If, as an initial hypothesis,
greater judicial diversity results
in more dissent, this paper considers whether the promotion of disagreement and
in fact positive objectives in the law, rather than simply a cost
or inevitable incident, as Richard Posner and others have suggested.
this contention lies in our routine maintenance of courts comprising an odd
number of judges. Such clear institutional
design hints at more than a
toleration of minority opinions, and suggests that disagreement is not simply
anticipated but may have
a discernible value. While experience bears that out,
an articulation of disagreement as inherently important to law has a direct
bearing upon contemporary debates in the United Kingdom, Australia and other
common law jurisdictions as to whether ‘diversity’
included as an express criterion in the appointment of judges.