Legal Method Assignment

Judicial Formalism versus Judicial Activism
In this essay I will critically analyse the use of the terms ‘judicial activism’ and ‘legal formalism’, and I will discuss their merit and usefulness in assisting in the analysis of judicial method. In my opinion, both terms are mere labels used to insight emotion, the term ‘judicial formalism’ is used to describe followers of ‘strict legalism and high technique’, as said by Sir Owen Dixon,1 and the term ‘judicial activism’ is used to label those who believe the law to be a living organism effected by external factors. 2
Firstly, I will begin by analysing the label of ‘judicial formalism’. Sir Owen Dixon stated that formalism is the application of ‘strict logic and high technique’, which is taken to mean that formalism advocates strict and complete adherence to legal doctrine and precedent. 3Opponents of formalism claim it to be the unrealistic and idealised notion that legal reasoning is an autonomous, neutral and rational process that is to be distinguished from the partisan and arbitrary world of politics. 4
Formalism is based on the premise that the law exists in suspended animation cut off from all socioeconomic factors. 5 As a result of this premise judicial formalism is heavily criticized as being unrealistic and it is claimed that its implementation would render the law incapable of keeping pace with society. Honourable Justice Michael Kirby claims it to be a legal philosophy, which has far outlived any useful application it may have once had in assisting in the administration of legal method. Continuing to say that to return to ‘strict legalism’, as advocated by legal formalism, would be not only undesirable but that it would amount to returning to an ideological falsehood or fairytale. 6
Justice Michael Kirby argued that formalism is too mechanical in its application and that it would be wrong, futile and naïve for a judge to pretend that the solutions to all of the complex problems of the law today may simply be found in the application of nothing more than ‘strict logic’ to words written by judges in earlier times about different problems they faced.
The idea that there is no need for any new rule or principle to be developed, as there always is a pre-existing legal rule for every contingency, as argued by Justice Dyson Heydon, is highly controversial. 7 Opponents of the philosophy believe it is fatally flawed by the claim that there exist apolitical permanent values that would guide judges through any turbulent waters of recasting the law when confronted by conflicting authorities or novel situation. 8
I will now analyze the label of ‘judicial activism’. The term is often thrown about without any real definition being readily available. Basically, judicial activism is the label used to mar those who veer away from the application of ‘strict logic and high technique’.9 Judicial activism is said to mean using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case.10 According to John Gava judicial activists are those who deliberately depart from legal doctrine and precedent and their use of judicial power often serves the illegitimate function of furthering some political, social or moral programme: the law is seen as a possible starting point or catalyst for developing a new system to solve a range of other cases. 11
Gava claims that the acceptance of judicial activism will result in the emergence of a new class of judges, to whom he refers to as ‘hero judges’. He claims these judges see their role as reducing the legal shackles on government, this increasing the capacity of government to manage the economy and accelerate the pace of economic growth. 12
According to Justice Dyson Heydon the actions of these kinds of judges appear designed to attract academic attention and stimulate debate about supposed doctrines associated with the name of the judicial author. He claims they seek judicial immortality by deliberately handing out controversial rulings that contradict existing legal principles in order to draw attention to themselves.13
Personally, I believe neither the term ‘judicial formalism’ or ‘judicial activism’ proves to be a helpful tool in the analysing judicial method, as they both mere labels used to insight emotion and assert negative connotations. Both labels display extreme ideologies on one hand lies the legal philosopher incapable of accepting any change/advancement in the law and on the other lies the judicial revolutionary pioneering change to serve a hidden agenda. However, it is somewhere between the spectacle of a judge who pursues 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, that there lies a place in which real judges perform their duties: neither wholly mechanical nor excessively creative.14
In my opinion, this middle ground is Sir Owen Dixon’s neo-formalism. As unlike any of his predecessors, he acknowledges that, change in the law is legitimate and that the change could be effected by analogical reasoning, or incremental growth in existing rules, or a rational extension of existing rules to new instances not foreseen when the existing rules was first developed. Particular rules might be modified by the detection of more general principles underlying them or a more rigorous reformulation of some traditional concept.
Sir Owen Dixon despite acknowledging that change in law is legitimate still exalted ‘close adherence to legal reasoning’ and expressed faith in ‘a strict and complete legalism’, stating that fidelity to legal doctrine and principle is paramount. 15 This philosophy allows the judicial process to satisfy conflicting demands: to achieve simultaneously constancy and change, to honour tradition yet allow transformation, to promote stability without losing flexibility, and, perhaps most challenging, to achieve individualised justice while promulgating general rules, and as such proves helpful in the administration of judicial method.16
In conclusion, Sir Owen Dixon’s philosophy appears to be the only useful tool in assisting in the analysis of judicial method, as both the terms ‘judicial formalism’ and ‘judicial activism’ prove only to be exaggerations of legal philosophies, neither which would prove useful in the administration of true justice.