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Judicial activitism: authority, principle and policy in the judicial method. 4. Concordat.

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Hon Justice Michael Kirby AC CMG High Court of Australia FOURTH HAMLYN LECTURE 2003 Delivered 25 November 2003

University of Cardiff, UK


There is a legal Counter-Reformation underway. It is made up of those who denounce as "judicial activism" the time-honoured role of our judges to adapt and adjust the law to the age of cyberspace, the genome and global human rights. This Counter-reformation should not be allowed to succeed. If it does we will end up with our own disgraceful incidents of judicial witch-hunting that have occurred in the United States. Alternatively, we may witness the bullying of judges in the attempt to force them to draw back from honesty in the discharge of their functions so as to avoid threatened political heat from people who prefer an inert judiciary: one that denies its legitimate creative role in defending justice.

Somewhere between the spectre of a judge pursuing political ideas of his or her own from the judicial seat irrespective of the letter of the law, and the unrealistic mechanic deified by the strict formalists, lies a place in which real judges perform their duties: neither wholly mechanical nor excessively creative.

We must now face up to the difficulty of identifying the criteria by which the contemporary common-law judge can legitimately exercise the judicial power in a given case to express, or to decline to express, a new rule of law or to state an existing rule in new and different terms. Without a theory to govern such activity, it is difficult to have a serious debate about judicial activism and restraint, except in terms of visceral reactions to particular outcomes. Angry demands that judges should not "make" but merely "apply" the law are answered with the questions: But what is the law? How can it be expressed without a human mediator who is bound to state the applicable ideas in words? With words that are often ambiguous or uncertain, how can judges avoid the obligations of choice? Put shortly, what is the judicial role in the particular case? Generalities and political slogans are not enough.

This search for the factors that encourage, or restrain, judicial re-expression of the law in ways that affect the rights of the parties and others in a like position goes on. An exhaustive checklist is an illusion. The judge who cries in dissent for restraint in one case may be moved in another to lead the efforts to re-express the law. The judge’s analysis may bring him or her to discard past statements of legal authority as "ill adapted to modern circumstances … [or] rest[ing] on dubious foundations". Yet in the next case the very same judge may reject the appeal to a like creativity and insist on strict adherence to past doctrine and old legal authority.

We should not be over-concerned about such divergences. Obviously, a basic consistency of approach is desirable. However, a human institution like the judiciary, of changing membership and changing minds, operates within, and serves, a changing society. Over time the judiciary is bound to reflect different values. The same judges may do so at different stages of their careers. In the common-law system, this feature is even institutionally entrenched by the right to dissent and by the practice of multiple opinions in appellate courts. In the spaces created by such opinions, there is room for future manoeuvre. As the impact which the philosophy of judges has upon their decisions becomes clearer to governments, it is natural that governments should attempt to appoint as judges people whom, they hope, will generally reflect the values that the government holds dear. But if once appointed the judge is competent, independent and impartial, he or she will often disappoint those who seek to categorise the judiciary by simple stereotypes.

Subject to any constitutional restrictions, a legislature can usually do what it likes in making the law. But a judge has no such freedom. A judge can do nothing without a case. A judge must operate within a complex world of rules, mostly made by others. The judicial function is therefore always tethered to a rule or principle of law. Sometimes that law may be clear, binding and immediately applicable. Sometimes it may be obscure and at best discovered by reasoning by analogy applied to a decision in the case in hand. Sometimes it will bear only a remote similarity to earlier cases or texts relied on to solve the problem. But, ultimately, in the common-law system, there is never an absence of law. If there is no apparent law on the subject, the judge is duty-bound to create it, based on part precedents. Citizens need to know and face up to these realities. So do the bullies who cry "judicial activism".

Where a principle of the common law is one of longstanding, particularly where it constitutes a settled or fundamental rule or a rule upon which many people might be expected to have ordered their affairs, judges will generally leave it alone. In such cases, most judges of the common law will prefer restraint. Even where a persuasive case is made out to suggest that the established rule is unjust or inadequate, judges will commonly leave it to parliament to provide any repair. Sometimes judges in their decisions may recommend the need for legislative reform. Occasionally they may indicate a willingness to contemplate judicial re-expression of the legal rule in the future if parliament fails to act.

However where judges are confronted with cases that involve unique facts they must respond to the parties' arguments. They cannot walk away. They cannot postpone indefinitely. They cannot say it is too hard. It is the obligation to make a decision in a particular case, affecting real parties, that concentrates the judicial mind upon the duty to find, as efficiently and accurately as possible, the applicable rule of legal authority. If that rule is clear and binding, the judge in our legal system usually applies it. And that is that. The cases where the propounded rule is unclear, not binding or such as to suggest the need for a court with the power to re-express it, are exceptional. The higher the judge is placed in the judicial hierarchy, however, the more likely is it that such cases will arise for decision. In such cases, faced with a novel problem of the common law or an ambiguity of the constitution or of a law made by parliament, the judge should therefore have regard to the second and third of the three sources of guidance: not only legal authority, but also legal principle and legal policy.

Legal principle comes from an analysis of the emerging common themes of multiple decisions in connected areas of the law. Being itself the captive of past decisions, legal principle will not always be of great assistance. Where legal precept, precedent, authority and past principles offer an insufficient guide to solve a new problem in a just way, policy becomes essential to the decision-making of judges. In such circumstances, the quandary of judicial choice can be helped, and judicial reasons will be made more transparent, by the identification of the policy considerations that the judge takes into account.

Novel cases therefore require judges with the responsibility of decision to evaluate the choices they make by reference to considerations of legal policy. Will the imposition of a duty of care for negligence impose indeterminate liability on too many people? Will it expose people unreasonably to liability to others? Will it result in intolerable economic burdens upon citizens? Will it have adverse implications for the availability of liability insurance? Will it offend legitimate freedom of action by people in the position of the defendant? Will it drive some useful participants out of a valuable economic market? Will refusing it leave a vulnerable party without recompense reasonable to the circumstances?

In the past, such questions were commonly submerged in judicial reasoning expressed in verbal formulas: Is the damage too remote? Are the parties in a proximate relationship? Is there reliance by one person or another? In most countries of the common law today, judges in the higher courts, evaluate new cases by reference not only to authority and emerging principle but also to considerations of legal policy. Without candid attention to such policy the law will shuffle blindly from the decision in one case to another. Judicial attention to considerations of policy is not new. But what is new is the open acknowledgment of it; its exposure to scrutiny in the course of argument of the cases; and the transparent discussion of policy evaluation in the judicial reasoning that follows.

The legal counter-Reformation that has gathered steam in many countries in recent years teaches contemporary judges the need for fuller justifications for judicial re-expressions of the law. However, the attempt to restore reactionary theories about the judicial function and formalism in the expression of judicial reasons is sometimes just a cloak for a substantive agenda. Where that is so the formalists must be defeated - just as all extremist positions must fail. The modern judge can take pride in the honest disclosure of the influences of legal policy and principle (in addition to legal authority) as part of the judicial method. This is the continuing legacy of the great judges of the 20th century who led the legal Reformation. Their error, if there was one, was not the abandonment of the doctrine of "strict and complete legalism", which was absurd and dishonest. It lay in discarding the duplicity of earlier judicial illusions, without adequately preparing the public and the legal profession for the change in judicial technique that the legal Reformation introduced.

Greater honesty and candour about judicial reasoning is the abiding legacy of the enlightenment that came with the legal Reformation, particularly in the latter part of the 20th century. So far in most countries it has basically survived the Counter-Reformation. Whilst judges must tread with care in the territory marked legal principle and legal policy - because each of these considerations is indeterminate and often controversial - there will be no going back to the pretence that legal authority alone solves every legal problem. To this extent, the judicial method of the common law has been changed forever by the legal Reformation of our era. The Counter-Reformation will fail to overturn it.

But how, in the face of renascent formalism and community ignorance about the judiciary, can the truth of our legal system be told, so that it will be understood by lawyer and citizen alike? First, and most obviously, it is the responsibility of judges to drop the deception that law is mechanical, with all its problems solved by just applying the law. Judges must tell it as it is. They must do so not just in private conversations with each other but publicly, so that citizens and fellow lawyers, politicians and media pundits can understand the true nature of the task in which judges are engaged, including its creative element. One way to do this, as Lord Reid taught is by humour. The magic words "strict logic and high technique" are less likely to be taken seriously since Lord Reid in 1972 exploded the formalist fairytale with sharp Scottish contempt:

"There was a time when it was thought almost indecent to suggest that judges make law … Those with a taste for fairytales seem to have thought that in some Aladdin's cave there is hidden the Common Law in all its splendour and

that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairytales any more."

If humour does not do the trick, we must hope for enlightenment from plain speaking - from education of the public in the ways of their government. From explanation through the public media of the reasons for a measure of judicial activism and of the many benefits for human justice that it has brought in our legal tradition over eight centuries. For those who believe that this is a futile exercise, in the face of hostile politicians, media, business and other sources of power, hope may be derived from recent events.

One outcome of the centenary of the High Court of Australia has been an increase in public discussion in Australia of what courts actually do. And understanding about the legitimacy, indeed necessity, of judicial action to secure just and rational outcomes to disputes. We need more occasions to focus public attention on the judiciary and what it does. We need more dialogue and explanation from judges themselves. Underpinning the legal Reformation was a realisation by the best judges that the policy "Nanny knows best" no longer satisfies a better educated community. Today Brezhnev & Co could not restore the falsehoods, fictions and illusions of the age before glasnost. There might be occasional nostalgia for the pseudo ideals of the old regime and for its glory days. But there can be no going back to its falsehoods.

And where humour and rational explanations do not produce concord about judicial activism, a final means, a parable, may make the point.

The common law is not a formal garden. Like other gardens of the English tradition, it is not a place of manicured lawns, observing a strictly preordained theory with a coherent design. Only from above, from a great height, can the logic, pattern and essential order of this garden be perceived. The judicial gardeners are busy. Every now and again they try to clean up a section of the garden. They pull out a few dead bushes. They replant the remainder in a more orderly fashion. When this happens some of those who knew the garden as it was get extremely angry. A few, of curmudgeonly disposition, go round muttering that the former state of things should be restored. Some, who are upset, scream and shout at the gardeners. They denounce them as horticultural "activists".

But overall things have not changed all that much. It is how this garden has been maintained for centuries. It is how it will probably be for centuries to come. The remarkable thing is that, for all its faults, the garden is much admired. Those who live elsewhere come and look over the wall. Sometimes they shake their heads at the lack of logic and order; but in their hearts they know that the garden has been looking better in recent times. Indeed, there is probably no better garden in the world.

* The full text with references will be published in 2004 by the Hamlyn Trust, England.