Judicial Activism in Common Law Supreme Courts

512 Pages·2008·29.083 MB·English

by  Brice Dickson

JUDICIAL ACTIVISM —
~ IN COMMON
LAW
‘SUPREME COURTS
an
Brice Dicky
This book examines the extent to which the judges
in the top courts of nine common law jurisdictions
have gone about developing the law oft heir
respective countries in recent years. It looks in
particular at how deferential the judges have
been to governments and Parliaments and at how
keenly they have sought to protect human rights.
Each chapter summarizes the current debate
around the appropriateness ofj udicial activism
in the country concerned and provides evidence
for assessing whether the judges have indeed been
overly active, as is so often claimed these days. The
book provides the first detailed comparison of a
range ofd ifferent national experiences and seeks
to identify the principles in accordance with which
each court has decided to develop the law or to
leave that function to another arm oft he State.
How have the judges interpreted legislation?
What use have they made of standards derived
from other countries or from international law?
How willing have they been to make law in areas
which are traditionally the preserve ofe lected
politicians?
The contributors are all experts in their own
jurisdictions and have already published widely
in the field. The jurisdictions covered are Australia,
Canada, India, Ireland, Israel, New Zealand, South
Africa, the United Kingdom, and the United States
of America. There is also an introductory chapter
outlining the features of common law supreme
courts. The chapter on the judicial work oft he
House of Lords anticipates the transformation
of that court into the Supreme Court oft he
United Kingdom in 2009, and the book as a
whole suggests that there is plenty of scope for
that new body to learn from the experience of
other common law supreme courts about the
appropriate limits ofj udicial creativity.
Brice Dickson is Professor of International and
Comparative Law at Queen’s University Belfast.

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JUDICIAL ACTIVISM IN COMMON LAW
SUPREME COURTS

Judicial Activism in
Common Law
Supreme Courts
Editedb y
BRICE DICKSON
OXFORD
UNIVERSITY PRESS
OXFORD
UNIVERSITY PRESS
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Published in the United States
by Oxford University Press Inc., New York
© The several contributors, 2007
The moral rights of the authors have been asserted
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Database right Oxford University Press (maker)
First published 2007
All rights reserved. No part ofth is publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
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Oxford University Press, at the address above
You must not circulate this book in any other binding or cover
and you must impose the same condition on any acquirer
British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
Judicial activism in common law supreme courts / edited by Brice Dickson.
p.cm.
ISBN 978—0-19-921329-0
1. Political questions and judicial power. 2. Courts of last resort.
3. Appellate courts. 4. Judicial review. I. Dickson, Brice.
K3367.J82 2007
347°.035—dc22 2007035281
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
Biddles Ltd., King’s Lynn, Norfolk
ISBN 978—0-19—921329-0
1 BES OM0868 A : 2
Preface
This book analyses the extent to which the highest courts in nine common law
countries around the world have been ‘judicially active’. There is considerable
uncertainty over what precisely ‘judicial activism’ means, but most commentators
agree that it can be used to refer to court decisions which develop the law in ways
that are within the appropriate range of options available to an unelected body.
The nine countries in question are Australia, Canada, India, Ireland, Israel,
New Zealand, South Africa, the United Kingdom, and the United States of
America. Israel is a mixed legal system but, as the relevant chapter points out, it is
very much grounded in an English common law tradition.
The contributors were asked to examine how the highest court in their country
has gone about carving a role for itself which complements that of the legislature
and the executive. They have placed the emphasis on what has happened in each
jurisdiction during the past 10 to 20 years, but in some cases they have found it
necessary to adopt a longer historical perspective. In addition they have often had
to situate their analysis within a broader political and constitutional perspective.
The country-specific analyses are preceded by an introductory chapter which gives
an overview of the nine different courts and points up some relevant variables.
As editor | am most grateful to all the other contributors for agreeing to be
part of this collection, which is specifically intended to provide food for thought
for those judges who will be members of the new Supreme Court of the United
Kingdom, due to be inaugurated in 2009. Most of the countries in question are
ones which used to send appeals to the Judicial Committee of the Privy Council.
The time has now come for the indigenous supreme courts to come into their own
as potential models for the supreme court of the former colonial motherland.
The staff at Oxford University Press have been extremely supportive through-
out the production of this book. Particular thanks must go to John Louth,
Rebecca Smith, Lucy Stevenson, and Bryony Matthews. I am particularly
grateful for their help with the Table of Cases, the Table of Legislation, and the
Index. Thanks too to my wife, Patricia Mallon, for her customary tolerance and
encouragement.
Brice Dickson
Belfast
23 August 2007
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