ASK A QUESTION
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