"When philosophy paints its grey in grey then has a shape of life grown old. By philosophy's grey in grey it cannot be rejuvenated but only understood. The owl of Minerva spreads its wings only with the falling of dusk." -- G.W.F. Hegel, 'Preface', Philosophy of Right.
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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx
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Cheryl Saunders on judicial activism
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July 29, 2007
Cheryl Saunders comments on judicial activism from the Law Report on ABC
People I think don't understand very well how Courts work in a Common Law system, or many people don't. But the fact of the matter is that at the margin, the role of Courts - and in particular, final Courts - is inevitably creative. The Common Law by definition was a law made by Judges. When Judges are confronted with novel questions that haven't been resolved previously, they must draw on various different sources to resolve those questions. It's not necessarily activism, it's creativity if you like, but it is within limits....I think that there will always be tension between the political arm, the executive arm and the Legislature and the Judges.
Sure there will be tension as the legislature and judiciary are part of the checks and balances of power. This is clearly seen in the way the High Courts dealt with fundamental rights and freedoms.
Sir Anthony Mason says"
More recently, the High Court has also expressed the view that an unambiguous expression of statutory intention is required to over-ride a fundamental right. The identification of fundamental rights and freedoms is more problematic than identifying the values protected by the Common Law. Which fundamental rights and freedoms should the Courts select and protect?
It has been suggested that Judges tend to assert without demonstrating that particular values are protected by the Common Law. The statement in Mabo no.2, that non-discrimination is one of the fundamental values of our Common Law, has been instanced as an example. The Australian constitution itself is a source of rights and values which can be used in the development of the general principles of law. Apart from express and implied rights in the constitution, representative Government, responsible Government, the separation of powers, an independent Judiciary, are among the values which can be derived - either from its express terms or from its structure.
Mason says that it has even been suggested that certain values could be derived from the concept of a modern Liberal democracy, of the kind for which the Constitution provides and from the concept of citizenship.
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| | Posted by Gary Sauer-Thompson at 11:30 PM | Permalink |
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