i have a pretty strong view on judicial activism and i condemn it, in all its forms.
do not ever say that the courts are supposed to be engaged in 'making law' - that is not their function.
As Judge Learned Hand said in his dissenting opinion in
United States v Shaughnessy (1952) 195 F 2d 964 at 971 (2nd Cir): ??Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.??
This is reminiscent of the more remarks of Oliver Wendell Holmes, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)
[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative. The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."
Here are some exerpts from
[b]Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" [2004] [i]OtaLRev 2[/i] [/b] with a few points i added in as well:
Judicial activism tends to the destruction of the rule of law. The force of the law depends of the capacity of the legal system to command of the consent of the people.
If judicial opinions are in a constant state of flux, swinging back and forth, one cannot expect the law to remain reasonably stable. Uncertainty in the law will result. What one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hance capacity of the law to command the people?s obedience.
Meaning of Judicial ActivismThe expression ?judicial activism? is here used to mean using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case. It means serving some function other than what is necessary for the decision of the particular dispute between the parties. Often the illegitimate function is the furthering of some political, moral or social programme: the law is seen not as the touchstone by which the case in hand is to be decided, but as a possible starting point or catalyst for developing a new system to solve a range of other cases. Even more commonly the function is a discursive and indecisive meander through various fields of learning for its own sake.
Courts can change the lawThe common law is not frozen and immobile, change in the law is entirely legitimate. When new cases arise, existing principles can be extended to deal with them, or limited if their application to the new cases was unsatisfactory. As business or technical conditions changed, the law could be moulded to meet them. As inconveniences came to light, they could be overcome by modifications. The changes could be effected by analogical reasoning, or incremental growth in existing rules, or a rational extension of existing rules to new instances not foreseen when the existing rule was first developed. Particular rules might be modified by the detection of more general principles underlying them or a more rigorous reformulation of some traditional concept.
Even though courts are free to depart from their earlier decisions or the earlier decisions of lower courts, they should not lightly overturn established precedents. The law in general should only be changed by a process of gradual development, not by violent new advances or retreats or revolutions or ruptures.
The Court is neither a legislature nor a law reform agency State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633, the once cautious, Mason J said: ?I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances.
But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The court's facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the court call for, and examine, submissions from groups and individuals who may be vitally interested in the making of changes to the law. In short, the court cannot, and does not, engage in the wide-ranging inquiries and assessments which are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature.?
Judges not equipped to ?make law?Leaving aside the legitimate role of appellate courts in changing the law by a process of development and adaptation, the conscious making of new law by radical judicial destruction of the old rests on a confusion of function. Those who staff courts do not have that function. They lack the experience to perform it; they lack the assistance required to perform it; they can only do it retrospectively; it is not easy for them to do it clearly; it is not easy for them to do it decisively; and it is not possible for them to balance the financial and other effects of the changes against other demands.
In
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262, Fullagar J said: ?If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all.?
Judges swear to apply the existing laws and usages, not to unsettle them by critical debates about them and speculations about their future, and certainly not to create new laws and usages. It is legislatures which create new laws. Judges are appointed to administer the law, not elected to make it or undermine it.
Community values or judge?s values?When judges detect particular community values, whether in the Australian community or the ?international community?, as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold. This suggests that the judiciary are in truth applying the values which they hold, and which they think the people ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.
Politicians job not judge?s job to make lawRadical legal change is best effected by professional politicians who have a lifetime's experience of assessing the will of the people, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and arbitrary basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions. Professional politicians may not be an ideal class, but that is their job, and they are better fitted than the courts to make radical legal changes.