The bankruptcy of judicial restraint and judicial activism: the impact of doctrines of judicial restraint on common law adjudication

Abstract

The doctoral dissertation which follows particularizes the content of a series of analogous legal principles, which in part determine, whether a court in which the tradition of common law adjudication prevails will render a decision in a particular case. These principles include justiciability, standing,mootness, ripeness for review and include what have been compendiously described, in the United States, as of judicial restraint.The interrelation between these principles and common law adjudication is explored by examining the principles, with a view to seeing whether they share a common purpose in affecting the course of adjudication, as the American appellation of judicial suggests. Special reference is made to Australia. The model of common law adjudication against which these issues are canvassed is a modern re-statement of the declaratory theory of law.Amongst the conclusions reached is the expression, of judicial restraint,is misconceived.After evaluating such doctrines, in the direct light of their analysis, and the indirect light of analysis of judicial restraint's antimony, judicial activism, one arrives at the view that both judicial restraint and judicial activism are category errors in law; properly belonging to political analysis, not to legal analysis, except in those circumstances where such errors become part of the legal professional mind-set.Basal to the correct approach is judicial process classically concerns judgment derived from existing rules. Certain of the of judicial fit such a system. Others of them, particularly those associated with Mr. Justice Frankfurter of the Supreme Court of the United States, and further, many extensions of traditional doctrines associated with His Honour, are illegitimate and do not comport with a system founded on judgment, not will.In the result, judicial restraint and judicial activism are bankrupt. Some of the implications of this are spelt out in the conclusion.The methodology involves comparative legal analysis. Any difference in approach to these matters by the High Court of Australia since the ending of appeals to the Queen in Council, and any commonality of purpose between these principles and the doctrine of stare decisis in minimizing the importance of obiter dicta are incidentally noted.This thesis is thematically jurisprudential, with special reference to the Australian milieu. Its centre-piece is the examination of the inter-relation between the principles and adjudication, not the exposition of the law, in itself. However, a detailed exposition of some areas has been undertaken, in order to avoid the pitfalls of inadequately anchored generality. The statement of general propositions is alternated within detailed expiscations of narrow areas with the relevant general proposition.