Judicial dispute settlement appeals for a variety of reasons. First is the presumed impartiality of the arbitrator who decides the dispute. Second is the accessibility to justice and the opportunitygiven to complaining parties to put forward their claims. The impartial judge presiding over amatter brought before him by persons to whom he owes no other obligation than to render toeach their just deserts, is guided by certain rules by which he must abide. He must first beconscious of the duty to decide the matter before him within the limits of his jurisdiction and notencroach on the power of others. He must comply with all relevant legal provisions, laws, by-laws, codes, and legal principles, the rules of interpretation of which are also relevant to thedetermination of the matter. To travel beyond the boundaries of these determinants is to engagein a willful and deliberate disregard for his limitations, and an abuse of the exercise of his judicial powers. In organized civil society, and in democratic governments in particular, althoughthe judge is called to do justice, he receives no credit if in attempting to do justice he encroaches
upon the powers of others. Theses „others‟ are those who make laws for the society,
also knownas legislators, and those who take the decisions on running the society, i.e. executives.Deference to the powers of other arms of government is not the only limitation on thecontemporary judge. A judge must not allow personal prejudice, bias or even personalexperience irrespective of relevance, to influence and reflect in his judgement. In anglo-American legal jurisprudence there is further deference to be made by a judge, to any applicabledecisions of other judges before him. He is also expected to defer to the decisions of courtshigher in the hierarchy. The latin maxim
stare decisis non quieta et movere
, (to stand bydecisions and not to disturb settled matters) binds judges in these legal systems to abide by pastdecisions, a concept which provides for certainty and predictability in judicial interpretation.Although civil legal systems are without the background of common law in which context this
principle evolved, civil law judges are not wont to proceed with complete disregardfor relevant past decisions in determining present cases. However, there may arise newcircumstances, disputes involving issues that have never been considered before, and ambiguouslegal provisions. Can the judge then delve into his powers of rule interpretation, dig deep into hisvast milieu of experience, apply his keen knowledge of legal philosophy, or rely on his personalconvictions to reach a decision?
Legal scholars and jurists respond in negative. This would be „Judicial Activism‟, for to do any
of this is for a judge to impose his personal preferences in his decisions to such extent as toultimately negate the law as a body of rules to guide conduct.
But what is „Judicial Activism‟?
Before that we need to ask what is the role of a judge? Is it to merely to interpret the law as itexists or to make laws? While the conservatives suggests that making laws is the function of legislation and enacting them is of executive, the judiciary should not encroach on the power of other pillars of democracy and instead interpret the existing laws. But the liberals conclude that