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Judicial Activism in Common Law Supreme Courts PDF

512 Pages·2008·29.083 MB·English
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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. Digitized by the Internet Archive in 2022 with funding from Kahle/Austin Foundation https://archive.org/details/judicialactivismO0000unse_h7b1 JUDICIAL ACTIVISM IN COMMON LAW SUPREME COURTS Judicial Activism in Common Law Supreme Courts Editedb y BRICE DICKSON OXFORD UNIVERSITY PRESS OXFORD UNIVERSITY PRESS Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department oft he University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dares Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries 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, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization, Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, 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 twtel Gite toga - 1).S aaS weil ~ movi)t a de . - ee ALR RTYEO 5V ND orale iretiz betieded pera =e wails 1 trap yls YS 1j aebo sd Whaetog eeg. ulaer Te teee vie eee age “=> 7 briyy i” vr vb (aaheSl temtiz (ees: cm : y O= - ge Vai! aut

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