'Judicial Method: activism versus formalism’
A new era has emerged from the societal and legal changes that have occurred in Australia. The age of Judicial activism has taken over the more traditional method of judicial formalism. Supporters of the latter’s concerns that it promotes power without responsibility, and blurs the separation of powers, however the supporters of the former agree that inevitable changes in society force the judiciary to acknowledge that judicial formalism is a method that is not completely obsolete, but takes is less of a primary concern as it were, compared to other factors that effect a case.
Those who are in favour of judicial activism argue that social change has increased the need for legal change and judges need to be able to make decisions considering external factors and using processes other than the law that make judicial method more subjective, adhering to legislation and legal policy but giving more significant acknowledgement to situational factors.
The Honourable Michael Kirby’s pro-activism article centers around the view that judicial method must divert from the traditional method of legalism that Justice Kirby defines as “strict logic and high technique”. It starts by outlining the need for the judiciary to make this transition into judicial activism due to societal changes, where strict legalism is put under pressure. Justice Kirby then goes on to explain that the method of judicial activism should not be abused by the judges, where it should “be anchored in legal authority” and be “neither wholly mechanical or excessively creative”. He describes that “restraint” be used when using judicial activism to ensure that a total ignorance of the written law does not occur .
A similar article about pro-activism by Michael Coper agrees that the “phenomenon of social change….has accelerated the rate of legal change” and put a “pressure on concepts like ‘strict logic and high technique ’, thus supporting the...
Bibliography: Justice j D Heydon, Judicial activism and the death of the rule of law, (2003), 23 Aust Bar Rev 110
John Gava, ANOTHER BLAST FROM THE PAST OR WHY THE LEFT SHOULD EMBRACE STRICT LEGALISM: A REPLY TO FRANK CARRIGAN, (2003) 27 Melb U. L. Rev. 188
The Right Honourable Sir Owen Dixon, G.C.M.G, Concerning Judicial Method, (1956) 29 The Australian Law Journal 469
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