Strict Legalism or Judicial Activism: Which One Is the Dominant?

Abstract

In 1915, the Hon Sir Owen Dixon was sworn in as Chief Justice of Australia. At that occasion, he said: ‘[i]t may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safer guide to judicial decisions in significant conflicts than a strict and complete legalism.’ Many criticisms of the Dixonian principle had been delivered against it. This principle was included in his Honour’s previous speech, that complete legalism is the safest path for judges in controversial issues to stay reliable. One of these critics claimed that either the Hon Sir Dixon’s view is naive, or it is a ‘noble lie intended to hide the obvious freedom open to judges when they decide cases.’ Another saw his view as a belief that judges are obliged to use common law principles as the only external source for their decisions’ legitimacy, rather than their opinion about what the law should be. Judicial Activism is considered the opposite of the complete legalism described above by the Hon Sir Dixon. However, the term is very controversial, and a lot of attempts had made to define it, but for this essay, judicial activism is ‘the conscious development of the common law according to the perceptions of the court as to the direction the law should take in terms of legal, social or other policy.’ In fact, judicial activism is playing a tremendous role in the contemporary judicial entities. I argue that according to the results of global comparative research, judges do not adhere to the Hon Sir Dixon’s view that strict legalism is the safest guide for judges. Moreover, I argue that judicial activism is currently the norm and there is no room for complete legalism in the modern state’s judiciary.