Judicial Activism and The Rule of Law: The Threat of Judicial Activism to the Rule of Law in Australia Name: Corey Gauci Student No: 20101985 Subject: LW350 — Legal Philosophy Due date: 24 November 2014 Corey Gauci LW350 - Legal Philosophy 1482 - SydneyCONTENT INTRODUCTION. . PAGE 3 THE ‘RULE OF LAW’. . PAGE 3 JUDICIAL ACTIVISM. . PAGE 4 JUDICIAL ACTIVISM & THE RULE OF LAW — INCOMPATIBLE THEORIES OF INTERPRETATION .. a. Judicial activism undermines democracy ... b. _ Inconsistent approaches produce inconsistency Outcomes c. Judicial activism subverts the separation of Powers .. PAGE 9 CONCLUSION Corey Gauci LW350 - Legal Philosophy 1452 - SydneyJudicial Activism and The Rule of Law: The Threat of Judicial Activism to the Rule of Law in Australia |. INTRODUCTION Throughout the Wester world we are witnessing the rise of judicial activism, and Australia is no exception’. Since the advent of judicial activism in Australia, it has been undermining the very core of Australia’s judicial system, namely, the rule of law’, The rule of law underpins the way Australian society is governed’. Everyone (including citizens and the government) is bound by and entitled to the benefit of laws', Conversely, the term ‘judicial activism’ has become a pejorative term to malign so called ‘judge-made law’ as illegitimate law-making resulting from conduct that has no political mandate®. The theories of judicial activism and the ‘tule of law offer divergent poles of thought to explain how judges interpret the law®. Ultimately, although these theories are not mutually exclusive, they do represent the pull between the objective and the subjective, and the personal and the political”. f THE ‘RULE OF LAW’ According to A. V. Dicey, the ‘rule of law is a theory of democratic governance; everyone must act according to the law and can only be punished if they've breached a law, everyone is equal before the law, and individuals provide the basis and validity of the constitution’. 1 Thomas Greiber, Judges and the Rule of Law: Creating the Links — Environment, Human Rights and Poverty (Cambridge University Press, 1* ed, 2004) 53 2 Ibid, 8 Rodney Smith, Ariadne Vromen, and lan Cook, Contemporery Politics in Australia: Theory, Practice and Issues (Cambridge University Press, 2" ed, 2012) 265 4 Cheryl Saunders, and Katherine Le Roy, The Rule of Law (Federation Press, 1% ed, 2003) 36 5 Sackville, Judicial Activism (Oxford Guide to the High Court, 2001) 6-6 Ibid. 7 Prof Greg Craven, ‘Reflections on Judicial Activism: More in ‘Sorrow than in Anger’ (1997) 9 The Samuel Griffith Society Journal, 22-25 8 Adam Przeworski and Jose Maria Maravall, Democracy and the Rule of Law (Cambridge University Press, 4" ed, 2003) 261 Corey Gauci. LW350 - Legal Philosophy 1482 - Sydney 3The term was also familiar to ancient philosophers such as Aristotle, who wrote ‘Law should govern’, which has since become a fundamental maxim underpinning the rule of law®. The rule of law, like most theories of legal jurisprudence, is capable of an almost infinite gradation of legislative development. Stil, judicial activism can be compared with legal formalism’. There are three key principles that underpin the theory of legal formalism, namely, that the law is made by the state, legislature and judicature, that the law is applied in a moral vacuum, and that law should be applied in a rational and systematic fashion", Accordingly, legal formalists contend that judges and other public officials should be constrained in their interpretation of legal texts, insofar that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers, thereby undermining the rule of law in Australia’, I, JUDICIAL ACTIVISM Throughout the Western world we are witnessing the rise of judicial activism", Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law". Judicial activism can take many forms: it may simply mean that judges are speaking out on controversial, ethical and political issues, or altematively, it can mean using one's position as a judge to not just apply the law but to radically reinterpret the law’, ° Adam Przeworski and Jose Maria Maravall, Democracy and the Rule of Law (Cambridge University Press, 4"" ed, 2003) 261 1@ Frank Carrigan, ‘A Blast From The Past: The Resurgence of Legal Formalismn’ (2000) 27(6) University of Melbourne Law Journal, 12 "Brian Bix, Jurisprudence: Theory and Context (Sweet & Maxwell, 6" ed, 2013) 195-197 +2 Brian Leiter, ‘Legal Formalism and Legal Realism: What is the Issue?’ (2010) 11(7) University of Chicago Law School; Public Law and Legal Theory Journal, 2 3 Hon J J Spigelman AC, ‘Blackstone, Burke, Bentham and The Human Rights Act 2004" 26(1) Australian Bar Review, 237 5 The Hon Justice M D Kirby AC, Judicial Activism’ (1997) 23(3) Commonwealth Law Bulletin, 1224-1237 *8 Ibia. Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 4Judicial activism is often compared with legal realism. The latter is of two types: (/) activist law making; and (i?) dynamic law making. Activist law making implied the legislature taking the existing ideas from the consensus prevailing in the society'®, Dynamic law making surfaces when the legislature creates an idea outside the consensus and before it is formulated, propagates it'”, Dynamic law-making always ordinarily carries with it legitimacy because it is the creation of the legislators who have the popular mandate. Consequently, Judges cannot play such a dynamic role; no idea alien to the constitutional objectives can be metamorphosed by judicial interpretation into a binding constitutional principle'® In support of legal realism, Oliver Wendell Holmes, Jr. premised that “The life of the law has not been logic; it has been experience”; espousing a form of skepticism and opposing the doctrine of judicial retention’®. Holmes’ maxim highlights the distinction between judicial activism and the historically entrenched notion of the rule of law; a rule of interpretation that was perhaps appropriate in the 17th century, but not in today’s advanced age, where the law is often used as an instrument for social change. 1V. JUDICIAL ACTIVISM & THE RULE OF LAW - INCOMPATIBLE THEORIES OF INTERPRETATION Although the rule of law holds historical significance in the establishment of ‘Australia’s judicial system, judicial activism operates in direct conflict with the rule of law, thereby undermining one of the longest standing legal principles under the common law”®. *8 Martin P. Golding and William A. Edmundson, The Blackwell Guide to the Philosophy of Law and Legal Theory (John Wiley & Sons Publishing, 1 ed, 2008) 17 Ibid. *8 Ibid. Hl +9 David E, White and Mary Harrison, Oliver Wendell Holmes Jr (Oxford University Press, 1% ed, 2006) 47 20 Thomas Greiber, Judges and the Rule of Law (IUCN, 1* ed, 2006) 53 Corey Gauci. LW350- Legal Philosophy 1452 - Sydney 5(a) Judicial activism undermines democracy The rule of law operates not only to protect judicial power from encroachment by the executive or the legislature, but also to uphold and promote Australia's status as a democratic country", Recently, however, there has been a fundamental shift in much of the judicial psychology of Australia”. The central element driving this shift is the proposition that judges should actively control the law, and develop it in accordance with their perceptions of the needs and desires of contemporary society®®. This proposition is in turn based on a series of assumptions, both positive and negative, conceming the right of the courts to take such action and undermine the rule of law, which otherwise prohibits judges from taking such an active role in the development of the law"*, The rule of law demands that judicial officers remain neutral in the application of the law, limiting them from pushing their own political and social agendas*. Judges are meant to serve the people and the laws the people helped to make, and not rewrite the law books and promote political correctness”. However, this has not exactly been the case for some years now. It must of course be acknowledged that judges, particularly at the appellate level, have an interstitial or incremental law making function’. That arises in the development of the common iaw case by case, along with the interpretation of statutes where choices have to be made between competing constructions. 2 A form of government in which the supreme power Is vested in the people and exercised directly by them or by their elected agents under s free electro! system. 2 Aharon Barak, The Judge in a Democracy (Princeton University Press, 1% ed, 2009) 22 ® Ibid. Ibid, 25 Cheryl Saunders and Katherine Le Roy, The Rule of Law (Federation Press, 1% ed, 2003) 3. 8 Ibid, 27 Frederick Lee Morton, Law, Politics and the Judicial Process in Canada (University of Calgary Press, 6” ed, 2002) 4 Ibid. Corey Gauci. LW350 - Legal Philosophy 1482 - Sydney 6However, judicial activism arguably seeks to broaden the scope and function of the cours, not only undermining the fundamentals of a democratic government by bypassing the legislature, but also the fundamental principles that underpin the rule of law as defined by A. V. Dicey, particularly the constraints placed on government officials and the power given to citizens in the law making process. {b) _ Inconsistent approaches produce inconsistency outcomes Australia’s legal system is premised on the application of rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not unreasonable and inconvenient, to all cases which arise®. Alternatively, judicial activism opines that judges assume a role as independent policy makers on behalf of society, along with their traditional role as interpreters of the Constitution and laws, often resulting in contradiction between the reasoning’s and decisions of judges”. In the late 1980s and 1990s, one school of thought in the High Court considered that the crucial test for identifying a duty of care in the tort of negligence was “proximity’®2, However, not only was this not universally accepted, but there was no case in this period stating a rule of law about proximity used as the basis for a decision, yet the proliferation of dicta caused endless speculation at all levels of the court system, resulting in inconsistent rulings and ambiguous laws®, The harm caused through the uncertainty concerning the application of a duty of care would have been much less likely if parliamentary legislation had been employed. 29 Frederick Lee Morton, Law, Politics and the Judicial Process in Canada (University of Calgary Press, 6" ed, 2002) 4 ® Michael K. Meek, Australian Legal System (Lawbook Company, 4" ed, 2008) 18 ® Rory Leishman, Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGil-Queen's Press, 1" ed, 2006) 218 22 Allan Beever, Rediscovering the Law of Negligence (Bloomsbury Publishing, 1%, 2007) 32 ® Ibid. Corey Gauci 1L.W350 - Legal Philosophy 1482 - Sydney 7Sir Owen Dixon CJ speaking extra-judicially noted thé "Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts... There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism." Likewise, Kirby J (dissenting) in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council®, in dealing with the role of the judiciary, held the view that a court must be consistent in what it says and does in its approach to interpretation, otherwise, the court will expose itself to criticism that its inconsistent approaches produce inconsistent outcomes. Moreover, the lack of consistent interpretation, would lead skeptics to believe that judicial dispositions represent little more than intuitive opinions of judges based on laws as viewed through their own narrow verbal lens*”. Nevertheless, it would appear that the search for consistent approaches to statutory interpretation is part of an endeavor by the courts to introduce ‘elements of the rule of law into this most common and important contemporary judicial function. (c) Judicial activism subverts the separation of powers There is no doubt that Australian Courts still struggle with balancing the tension between legal development and legal certainty. It is sometimes argued that one justification for judicial activism is that the legislature is uninterested in reforming the law and that the judges should therefore assume that task, 54 Sir Owen Dixon, Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australian on 21* April, 1952, in jesting Pilate and Other Papers and “Addresses, ed, Woinarski J, Melbourne (7985), p,247; also at (1952) 85 CLR xi and xii-xiv Yer Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) HCA 48 at [9] — [10]. Ibid. 38 Aharon Barak, ‘A judge on Judging: The Role of a Court in a Democracy" (2002) 19 Harvard Lew Review, 19 39 Lorand Bartels, ‘The Separation of Powers in the WTO: How to Avoid Judicial Activism’ (2004) 53(04) International and Comparative Law Quarterly, 861-895 Corey Gauci LW350 ~ Legal Philosophy 1482 - Sydney 8Since the legislatures have failed to keep the law in a serviceable state, "the courts have been left with a substantial part of the responsibility for keeping the law in a serviceable state, a function which calls for the consideration of the contemporary values of the community." Lord Reid (dissenting), answered the argument that itis the task of the judges to do what the legislature should have done, but failed to do, by saying *** “where Parliament has feared to tread it is not for the courts to rush in’. However, such view arguably confounds the distinction between legislative and judicial functions, and in that respect opposes the rule of law. Critics openly assert that the constitution provides for checks and balances to pre-empt concentration of power by any branch not confided in it by the Constitution, however, judicial activism arguable undermines this basis, yet central aspect of Australian politics”. The executive must implement laws enacted by the legislature and their interpretation is within the province of the judiciary. That is the reason why judiciary has always been treated as the least dangerous branch and sometimes it is also described as the weakest of the three branches with no control either on the purse or on the sword. By reason of judicial activism, the Judges could bring about much good or harm by resorting to innovative interpretation'®. Consequently, the judiciary does not have a popular mandate and, therefore, it cannot adequately play a prescriptive role, which according to the rule of law, is the domain of the elected law-making body. Vv. CONCLUSION The judicial usurpation of politics is a fundamental threat to democracy and the rule of law. When the legislative and executive arms of government are effectively stymied and decimated by a growing, expansionist judiciary, democracy comes under threat. * Dietrich v Director of Public Prosecutions (1992) 177 C.LR. 292, 328 #1 Shaw v DPP [1962] AC 220 at [456] 2 Cheryl Saunders and Katherine Le Roy, The Rule of Law (Federation Press, 1* ed, 2003) 3 ‘© Michael K. Meek, Australian Legal System (Lawbook Company, 4" ed, 2008) 22 44 Prof Greg Craven, ‘Reflections on Judicial Activism: More in Sorrow than in Anger’ (1997) 9 The Samuel Grifith Society Journal, 22-25 Ibid. Corey Gau W350 - Legal Philosophy 1482 - Sydney 9Further, in a democracy that promotes a balanced Constitution, under which powers and institutions mutually check one another, judicial activism is not directly inconsistency with the rule of law, but an intrinsic part thereof, refining it from crude majoritarianism into an internally regulating system in which the fickle will of Parliament and people is tempered by judicial discretion. Neither judicial activism nor the rule of law should be viewed as an absolute vice or virtue, and as such, have both produced some of the wisest landmark decisions as well as some of the less desirable rulings in Australia. Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 10Bibliography Books / Articles / Journals Barak, Aharon, The Judge in a Democracy (Princeton University Press, 1* ed, 2009) Bartels, Lorand, ‘The Separation of Powers in the WTO: How to Avoid Judicial Activism’ (2004) 53(04) International and Comparative Law Quarterly Beever, Allan, Rediscovering the Law of Negligence (Bloomsbury Publishing, 4%, 2007) Bix, Brian, Jurisprudence: Theory and Context (Sweet & Maxwell, 6" ed, 2013) Carrigan, Frank, ‘A Blast From The Past: The Resurgence of Legal Formalism’ (2000) 27(6) University of Melbourne Law Journal Craven, Prof Greg, ‘Reflections on Judicial Activism: More in Sorrow than in Anger’ (1997) 9 The Samuel Griffith Society Journal Dixon, Sir Owen, Address upon taking the oath of office in Sydney as Chiof Justice of the High Court of Australian on 21" April, 1952, in jesting Pilate and Other Papers and Addresses, ed, Woinarski J, Melbourne (1965), p,247; also at (1952) 85 CLR Golding, Martin P, and William A. Edmundson, The Blackwell Guide to the Philosophy of Law and Legal Theory (John Wiley & Sons Publishing, 1% ed, 2008) Greiber, Thomas, Judges and the Rule of Law: Creating the Links — Environment, Human Rights and Poverty (Cambridge University Press, 1% ed, 2004) Corey Gauci LW350 ~ Legal Philosophy 1482 - Sydney 11Kirby AC, The Hon Justice M D, Judicial Activism’ (1997) 23(3) Commonwealth Law Bulletin Leiter, Brian, ‘Legal Formalism and Legal Realism: What is the Issue?’ (2010) 141(7) University of Chicago Law School; Public Law and Legal Theory Journal Leishman, Rory, Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill-Queen’s Press, 1* ed, 2006) Meek, Michael K, Australian Legal System (Lawbook Company, 4" ed, 2008) Morton, Frederick Lee, Law, Politics and the Judicial Process in Canada (University of Calgary Press, 6" ed, 2002) Przeworski, Adam and Jose Maria Maravall, Democracy and the Rule of Law (Cambridge University Press, 4" ed, 2003) Sackville, R, Judicial Activism (Oxford Guide to the High Court, 2001) Saunders, Cheryl, and Katherine Le Roy, The Rule of Law (Federation Press, 4% ed, 2003) ‘Smith, Rodney, Ariadne Vromen, and lan Cook, Contemporary Politics in Australia: Theory, Practice and Issues (Cambridge University Press, 2" ed, 2012) Spigelman AC, Hon J J, ‘Blackstone, Burke, Bentham and The Human Rights Act 2004' 26(1) Australian Bar Review White, David E, and Mary Harrison, Oliver Wendell Holmes Jr (Oxford University Press, 1% ed, 2006) Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 12Cases Dietrich v Director of Public Prosecutions (1992) 177 C.L.R. Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) HCA 48 Shaw v DPP [1962] AC 220 Corey Gauci LW350 - Legal Philosophy 1482 - Sydney 13