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Some proponents argue that in the judicial system, matters of policy reasons are best left in the hands of Parliament to decide. For instance, cases involving moralities which appear before the courts such as deviant sexual practices, assisted suicide and the likes where consent is clearly given and that these practices have not yet been made illegal/unlawful. In these cases, is it over the board to say that judges who decide based on the general consensus of morality in a particular society are interfering with one’s conduct (because it has not yet been made illegal/unlawful) even though it is generally understood that these practices are inherently wrong? Can this statement be countered by Dicey’s third postulate on the rule of law that the courts are the guardians of citizens’ rights and that judicial activism is necessary to solidify a common morality? Or is it best for a judge to merely sit back and apply the law as it is, despite knowing that had Parliament decided on these issues, it would be similar to the judge’s decision?

November 26, 2008

Response from Peter S. Fosl on November 29, 2008
This question merits a much longer answer than I am capable of giving. But, with apologies for the compression, I'd say that the distinction between "activist" and "non-activist" judging is a popular-political distinction, not really one with much philosophical basis. Both the legislature and the judiciary produce new law and nullify old law, and they have always done so. They create and nullify law, however, in different ways--the legislature by enacting new legal codes, the courts by issuing rulings. Nor, however, is the line between the law and morality a clean one to draw. And, so, while I think it proper (indeed unavoidable) for the judiciary to enact new law, I also think it proper for judges to appeal to custom and common morality in rulings (for example in matters of indecency). Appeals to custom and common morality, however, must be balanced and in some cases simply limited by stipulated rights of non-interference and claim rights. They must also be balanced by countervailing lines of reasoning which may properly persuade courts that custom should be over-ruled. A clear set of principles to weight or establish an unequivocal hierarchy for (a) constitutional rights, (b) custom and common morality, and (c ) lines of independent reasoning cannot, I think, be given. The dynamic process of legal reasoning by means of precedent, guiding principles, clouds of norms, empirical studies, etc., is meant to work out this balance. As a general rule of thumb, however, constitutional rights trump the rest.


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