The Way Forward
Edited by Michael Faure and André van der Walt
Chapter 13: The Rule of Law and Judicial Activism: Obstacles for Shaping the Law to Meet the Demands of a Civilized Society, Particularly in Relation to Climate Change?
Jaap Spier* There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its spendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we don’t believe in fairy tales any more.1 ‘It [the rule of law] may well have become just another of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.’2 In theory … one could construct a model of judicial activism which accorded top judges … complete liberty to decide what they wanted to decide. … At the other end of the spectrum one could imagine a model which gives judges no leeway whatsoever to use their own discretion and which effectively requires them to serve as electronic calculators … Between these two extremes – a lottery machine on the one hand and a calculator on the other – there are innumerable intermediate positions. What differentiates them is the extent to which they reflect a preparedness on the part of the judges to expound – and justify – their personal view of the law.3 Advocate-General in the Supreme Court of the Netherlands, honorary Professor at the University of Maastricht. 1...
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