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July 25, 2007
Justice Michael Kirby's Third Hamlyn Lecture 2003 addresses judicial activism. I'm interested in the hostility towards human-rights principles, which provide a source for consistent judicial decision-making where there is a gap to be filled in the common law or an ambiguity of the written law to be resolved. What we have is the shortened version of two lectures at the University of Exeter.
In the shortened version Kirby says:
Ironically, despite the texts and all the legal developments that have occurred, many of those in the vanguard of the legal Counter-Reformation want to return to, or stay in, a world in which basic human rights are kept in check and judges are kept as far away from them as possible. The slightest "rights talk" has a tendency to make the exponents of the legal Counter-Reformation furiously excited. They see proposals for a constitutional charter of rights as a frontal attack on their very notion of the rule of law and of the legitimate judicial method as they see it. They quake in their shoes at the thought of "hero judges" released to "strut their stuff". It is too late, in their view, to save the United Kingdom, Canada and India from this foreign folly. But in the South Seas lies a big land which they hope will keep the flame of the true faith of the common-law judge alive until the rest of the world repents the error of its ways.
Kirby points the finger at legal formalism, which he does not define.
Wikepdia says that:
Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting 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.
On this account judges follow the law to the letter, leaving questions of its intent and underlying principles to elected representatives.
Kirby says the call for a return to the “strict and complete legalism” must be rejected as the fairytale that the legal Reformation taught it was.
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