The concept of judicial activism requires a departure from the current law in that it is a term used to refer to a judge who makes law either by refusing to apply “existing” law or by replacing it.[1]  Judicial precedent, on the other hand, dictates that “like cases should be decided alike.”[2]  Although these basic definitions of judicial activism and judicial precedent appear to represent opposing philosophies, a closer examination of the doctrine of judicial precedent narrows the gap.

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While judicial activism can be limited by the operation of the doctrine of precedent, the latter philosophy does not function to prevent judicial activism altogether.   This essay will argue that judicial activism is a broadly defined term and as such is operational within the flexible framework of judicial precedent.  In order to effectively make this argument this essay is divided into two parts.  The first part will examine the doctrine of judicial activism and the second part will examine the doctrine of precedent with a view to demonstrating how and why it does not prevent judicial activism.

Judicial Activism

Tushnet’s discussion of judicial activism defines the concept in the context of judicial restraint.  In this regard, judicial activism is understood as a method of judicial review juxtaposed against parliamentary sovereignty.[3]  Advocates for judicial  review argue that judges’ approach to constitutional law should be guided by restraint rather than by activism.[4]  In other words, judicial restraints demands that judges interpret “primary legislation” so that it comports with “constitutional norms”, and judicial activism permits judges to invalidate primary legislation.[5]

In line with this understanding of the mechanics of judicial activism, Kmiec defines judicial activism as “judicial invalidation of legislation enactment.”[6]  The operation of judicial restraint and judicial activism was adequately illustrated by the High Court of Australia in the case of R v L [1991] 174 CLR 379.  In this case, the High Court of Australia had for determination the question of whether or not a criminal charge of rape against one’s spouse was inconsistent with established criminal law and the provisions of the Family Law Act1975.[7]

Page 2 The Extent to Which Judicial Precedent Prevents Judicial Activism Essay

The appellant argued that the criminal charge of rape was inconsistent with the Family Law Act in that the latter implied that the institution of marriage conferred upon the parties an obligation to consent to sexual intercourse, an essential element of the crime of rape. Moreover, common lawprinciples of criminal law had established that a spouse could not be guilty of rape.   The Act under which the appellant had been charged with rape was therefore inconsistent with common law and the Family Law Act.[8]

The High Court of Australia however, not only ruled against established common law  principles of criminal law with respect to marital rape, but also contended that the principle itself was no more than a legal fiction, as it had not only been overruled by other Commonwealth courts, but had been legislated against in Australia.[9]  The court also ruled that the even if the law was such that a spouse could not withhold consent to sexual relations with other spouse, things had changed to such an extent that this tenet of law is inconsistent with modern society’s view of the marital relationship[10]

This case and the court’s approach to statute and common law developments appears to illustrate that judicial activism and judicial restraint functions very closely.  The judges in this particular case were careful in their construction of the seemingly inconsistent laws so that a correct balance was found between the law as it was and the laws as it should be, from the perspective of society’s view of the matter.  While the judges departed from established principles of law, they were able to justify it by reference to developments in the law that tended to support a departure.  So while the judges were predisposed toward judicial activism, they did so with a measure of judicial restraint.

This approach too judicial activism and judicial restraint demonstrates a respect for the tenets of judicial precedents, but also recognizes a need for departure from precedents that are no longer consistent with developments in the law and society’s view.  In this regard, the doctrine of precedents did not prevent judicial activism, but rather dictated that the courts apply the law fairly and reasonably, so that departure from previous decisions are justified and explained.  This aspect of the operation of the doctrine of precedents will be explained in greater detail in the section that follows.

The approach taken by the High Court of Australia in the case of R v L is also demonstrative of the ongoing practice of judicial activism in the criminal courts in general.   The fact is, quite a number of criminal offences continue to “remain creatures of the common law.”[11]

To this end, decisions by the judiciary remain important for the “development of criminal law.”[12]  In addition to common law offences, the judiciary is also required to interpret statutory offences.[13]  The result was that by the 20th century, judicial activism was such that the judiciary took a relatively liberal approach to interpreting statutory provisions in the application of criminal law.[14]  This approach to judicial activism continued despite judicial insistence that statutes should be interpreted narrowly.[15]

Judicial activism is not limited to the criminal law.  It functions generally in the law with respect to established common law principles and legislative provisions.  The Honourable Justice Raymond Finkelstein explains that the judiciary’s role in “maintaining and defending constitutionalism” requires “judicial review of government action.”[16]  In compliance with the tenets of judicial review of government action, the judiciary is necessarily required to interpret and apply statutory provisions so that they correspond with concepts and principles of the constitution, whether express or implied.[17] Intimately tied to this role of the judiciary is the need to ensure that governments do not exercise their executive powers unlawfully.[18]

The implications are, that the judiciary is permitted some measure of judicial activism in the sense that they do not subscribe to a practice that permits automatic application of the law.  The rule of law dictates a more flexible approach so that unlawful executive action as well as administrative decision-making “can be impugned in the courts.”[19] As Finkelstein maintains, it is for the judiciary to determine whether or not statutes and executive powers are lawfully exercised.[20]  In this regard, it is becomes increasingly clear that judicial activism is a necessary component of the rule of law.  In its absence, the government would have free reign to create and administer any law, regardless of how arbitrary.

The separation of powers commands judicial activism.  Judicial independence stands in cohesion with the fundamental rights and liberties of the individual “against the state.”[21]  The result is, the judiciary is required to give reasons for their respective decisions as a means of upholding the rule of law in their position as a bastion between the governed and the government.[22]  This fact alone is indicative of the mechanics and operation of judicial activism.  If judges were not permitted to review legislative provisions and previous decisions, it would be necessary for judges to provide reasons for their decisions.  The law would just be applied blindly.

Judicial activism in Australia has vacillated between liberal and conservative approaches, but has not been entirely eradicated.  To illustrate the point, Tina Hunter reviewed the practice of judicial activism in Australia over the last 100 years and divided it into four transitional compartments.[23]  The period from 1903-1920 was marked by a preference for constraints on and separation of government powers and judicial decision making focuses primarily on establishing “the relative roles of the sates and the federal government.”[24] Subsequent judicial appointments saw a shift away from this approach to a focus on “strict and complete legalism.”[25]

From 1920-1942 with the expansion of the High Court, judicial activism became far more pronounced than previously with the result that there was a “more expansive view on issues of constitutional interpretation.”[26] The period from 1942-1972 was marked by a return to a strict and legalist approach to judicial decision making.[27]  The guiding principle espoused during this period was a reliance on “technical legal solutions” over taking account of “policy or other issues or factors.”[28]

From 1975 to the present there was a surge in judicial activism although there remained adherence to legalism.[29]  There were more and more constitutional cases being interpreted and decided in new and creative ways.  Be that as it may, the numbers of judicial activists continued to be out-numbered by the conservative judges who preferred to remain true to the tenets of legalism.  As Hunter explains, the prevailing view among members of the judiciary was that changes in the law “should be left to Parliament.”[30] Even so, decisions reflecting judicial activism did find its way into the courts.

Today’s High Court of Australia currently has two judicial activists, although they are outnumbered by five.[31]  There appears to be a concern among the judiciary that judicial activism ought to be constrained.[32] Even so, this does not mean that judicial activism is prevented.  It merely points to the fact that judicial activism is constrained and in an appropriate case, as witnessed in the R v L case will be utilized when the ends of justice require it.

The Australian Law Reform Commission also recognized the existence and practice of judicial activism with respect to aboriginal customary laws and traditions.[33] The Commission noted that judges have typically recognized the “potential for injustice” by the strict application and interpretation of “the general law to traditionally oriented Aborignies.”[34]

In recognizing the potential for injustice, the judiciary have developed a practice which attempts to balance the application of Aborigines customary laws with the general law by mitigating or refining general laws which do not recognize Aborigines’ customary laws.[35] Ultimately, this approach, like the approach taken in the R v L case indicate that judicial activism, although constrained by a preference to the literal rule of law with respect to statutory interpretations and applications, is invoked in an appropriate case.

The Doctrine of Precedents

The common law of the British system has been defined in terms of custom.[36] It is this custom that gave way to the doctrine of precedents.[37] The Australian legal system is intricately tied to the English legal system with respect to judicial precedents.[38]  The doctrine of precedents is derived from the Latin term Stare Decisis which means “let the decision stand.”[39]  There are two primary elements of the doctrine of precedents that automatically give way to the inescapable conclusion that it does not prevent judicial activism.  These elements can be summarized as follows:

The legal rule found in the term ratio, dictates that there is no legal rule that can legitimately force “adherence to previous cases.”[40]
It is under the auspices of custom and practice that lead senior judges to adhere to the doctrine of precedents.[41]
In other words, the doctrine of precedent is no more than a customary practice that is not binding on judiciary, at least not in a strict sense.  As long as judges want to adhere to custom and practice, they will remain restrained rather than play into the tenets of judicial activism.  It therefore follows that there is nothing in terms of a legal rule of law in the doctrine of precedents that prevent judicial activism.  The approach that judges take to making and modifying laws is entirely voluntary.

This interpretation of the mechanics of the doctrine of precedents however, takes on an entirely different meaning within the hierarchy of the court’s system. The lower courts’ judges are not at liberty to over rule a decision of a higher court and are bound by those decisions.[42] There is nothing preventing the lower court overruling a decision of a lower court.  Likewise, while a lower court is bound by its own decision, there is no hard and fast rule preventing it overturning its own decision.  The only guiding principle is that the court does not want to be inconsistent and unpredictable.  This conclusion is inferred from the doctrine of judicial comity which means simply that judges will typically respect the decision of other judges and courts despite the fact that they are not bound to follow them.[43]

In order to understand the doctrine of precedent and how it leaves room for judicial activism it is necessary to evaluate the hierarchy of the court system.  This is necessary because the hierarchy of the courts dictates the customs and traditions that fuel and drive the doctrine of precedents.  The lower court’s decisions are not binding on the higher courts among this chain of command and necessarily dictates that judicial activism cannot, based on this structural basis be prevented.

At the bottom of the Australian courts sits the Magistrates’ Courts which sits below all the other courts in the Australian court’s hierarchal structure.  Directly above the Magistrates’ court sits the District courts.  Directly above the District courts sits a single judge of the Supreme Court who is in turn accountable to the Court of Appeal.  Running parallel to the Supreme Court and the Court of Appeal is the Federal Court of Australia which is presided over by a singly judge over which sits a Full Court of the Federal Court of Australia.  Sitting at the top of the chain of command is the High Court of Australia which has as its lower court a single judge and at the very top is the Full Court of the Australian High Court.[44]

In general, courts are bound by the higher courts in the hierarchy under which they sit.[45] Looking at the hierarchal structure of the Australian Courts, the Magistrates’ Court is bound by decisions rendered in the District Court, the Supreme Court, the Court of Appeal and the High Court of Australia.  The District Court is bound by the decisions made by the Supreme Court and each court above it and the chain continues in this vein leaving the High Court of Australia free of obligations to uphold decisions of any of the lower courts.

In this regard, there is nothing even in the concept of tradition and practice of the doctrine of precedents that prevent the High Court of Australia adhering to the practice of judicial activism.  The High Court of Australia may if it likes uphold its own decisions on the basis of judicial comity or under the auspices of tradition and custom, but there is not rule of law that binds these courts to its own decisions.  As demonstrated by the decision in R v L, the High Court of Australia will invoke the practice of judicial activism when it deems it appropriate to do so.

The only purpose that the doctrine of precedent serves is for the maintenance of “certainty in law and its orderly development” and it provides a means by which lower courts can benefit from the “learning, wisdom and general greater judicial ability of higher courts.”[46] In this regard the doctrine of precedent serves a useful purpose, and when it fails to serve that purpose can be departed from, thereby allowing and facilitating judicial activism.

Even while engaged in the colonies it was recognized that strict compliance with common law was not always consistent with the circumstances in a particular colony and departure or modifications were necessary.[47]  In other words, judicial activism is viewed as a necessary component of the rule of law. The idea is to apply the rule of law in a manner that is fair, just and reasonable and necessary to meet the ends of justice.  Rigid compliance to existing laws can result in unjust results.

Recognizing the futility of strict compliance to judicial precedents, a number of terms have been developed around the doctrine of precedents that indicate that strict compliance is not mandated.  For instance, the mere fact that the term stare decisis was introduced into the doctrine of precedents speaks to the fact that the doctrine is incapable of preventing judicial activism.  The term state decisis implies that a higher court may if it desires uphold a lower court’s decision when in fact it is not bound to do so.[48] By implication, if the lower court’s decision is inconsistent with a higher court’s decision, the higher court may indorse that decision under the auspices of the doctrine of stare decisis, thereby indorsing, rather than preventing the operation of the philosophy of judicial activism.

 The term res judicata also by definition implies that there is room for judicial activism.  The term res judicata exist so that if two decisions on vastly similar facts and circumstances are rendered, the earlier decision, having exhausted the appellate process will continue to stand.  This is so, although a later decision is inconsistent with the earlier decision.[49]  This term would not be necessary at all if the doctrine of judicial precedent functioned to prevent judicial activism, because precedent would dictate that the courts are bound by the earlier decision.

Moreover, higher courts are at liberty to uphold a lower court’s decision and this will be accomplished if and when a lower court’s decision is appealed.  The higher/appellate court may affirm the appeal.[50]  As previously stated, the lower court may have departed from established precedent and the appellate court may be persuaded by the reasoning of the lower court with the result that judicial activism is not prevented but awarded.  Likewise a decision can be reversed on appeal[51] and that decision may have adhered to judicial precedent.  In the hierarchal system of the courts, an appellate court may decide that a lower court’s ruling was wrong and yet another higher appellate court may overrule the previous appellate court’s decision.[52]

The introduction of each of these terms and practices in the hierarchal system of the courts indicate that previous decisions are not written in stone.  By making allowances for appeals and the operation of the doctrine of stare decisis, res judicata, the affirmation, reversal or overruling of previous decisions, judicial activism is not prevented, but simply accommodated by the doctrine of judicial precedent.

Additional terms such as approved, followed, considered, referred, doubted and distinguished each speak to the utility and operation of judicial activism.  The term approved permits the High Court of Australia to approve a previous decision.[53] Obviously, a previous decision that is merely following judicial precedent does not need approval.  This term will inevitably refer to a ruling that was spawned by judicial activism, since it necessarily infers inconsistency with previous decisions or a venture into entirely new legal territory.

The terms doubted and distinguished also indicate that judicial activism is not prevented by the operation of the doctrine of judicial precedent.  The term doubted it used when an earlier decision is considered and although “thought to be incorrect” is not “definitely overruled.”[54]  This can only mean, that judicial activism is not only recognized but is also anticipated.  The necessary inference is that although a higher court may find an earlier decision to have departed from judicial precedent and might doubt the correctness of the ruling it will not automatically overrule or quash the previous decision. Likewise the term “distinguished” permits judges to depart from previous rulings under the auspices of the doctrine of precedent on the grounds that the facts of the current case are different from the facts of an earlier decision.[55]

In fact, it can be argued that the customs and traditions that gave way to the doctrine of judicial precedent, also gave way to the notion of judicial activism.  This observation is made possible by the patterns inherent in the development of the English Common Law.  A number of statutory provisions, for example Partnership Act 1890, the Sale of Goods Act 1893, the Bills of Exchange Act 182 and the Marine Insurance Act 1906 are all codifying statutes in that they codified the “existing rules” that were “developed by the courts of Common Law.”[56]

In many ways the codifying of judge-made law in this manner is tantamount to judges legislating from the bench, although in an indirect way.  This occurs despite the operation of the doctrine of judicial precedent.  So judges do not blindly follow precedents and nor do they strictly comport with the legalism strategy of interpreting legislation.  Judges make law themselves and while they attempt to be consistent with previous decisions and interpretations of statutes, they do invoke the philosophy of judicial activism.


On its surface, the doctrine of judicial precedent is in direct conflict with the philosophy of judicial activism.  The doctrine of judicial precedent implies that all current and future cases will be bound by a previous case, provided they are all founded on vastly similar facts. On the other hand, judicial activism by implication means that a judge departs from established law and makes a decision that goes against a previous decision and can even involve a declaration that a particular piece of legislation is invalid.  However, a closer examination of the doctrine of judicial precedents and the manner in which judicial activism plays out throughout history demonstrates that despite their opposing definitions, the doctrine of judicial precedent does not prevent judicial activism.

Terminology such as res judicata, distinguished, affirmed, overruled and stare decisis have all arose out of judicial activism. These terms tend to lend weight to the belief that judges do in fact depart from the doctrine of judicial precedent.  The research reveals that judges will in an appropriate case declare established law inconsistent with current social views and depart from previous decisions.  So while judges may make a conscious decision to respect the doctrine of judicial precedent, they will balance the utility of this respect against the ends of justice and ultimately will see that justice is done.  If this means departing from judicial precedents or declaring a legislative provision ultra vires the constitution, judges will ultimately take this route.

This is not to say that all judges will uphold the constitution.  Judges are human and can make errors in law and in judgment.  This alone speaks to the fact that judicial activism is necessary.  A future judge recognizing an error in law of a previous decision will be able to overrule that decision under the auspices of judicial activism and despite the operation of the doctrine of precedent.  In the final analysis, judicial precedent is no more than a custom and while it can prevent judicial activism, it does not.  The most that can be said is that the doctrine of precedent restrains judicial activism, so that the law is administered consistently and with a degree of certainty.   It does not however, insist upon the administration of injustice, enabling judicial activism.


Australian Law Reform Commission. ‘Recognition of Aboriginal Customary Laws.’ (ALRC 31, 1986) Chapter 6 paras 198-209.

Ashworth, A. ‘General Principles of Common Law.’ Cited in D. Feldman (ed) English Public Law. (2004)

Campbell, T. ‘Judicial Activism – Justice or Treason?’ (2003) 12 Otago Law Review, 1-22.

Finkelstein, R. ‘The Role of the Judge: Judicial Activism and the Rule of Law.’ (2006) 9 Flinders Journal of Law Reform, 17-28

Grant J. ‘The Development of the English Common Law.’ Cited in The Anglo-American Legal System (1941)

Hanson, S. Legal Method and Reasoning. (Routledge Cavendish, 2003) 31. Retrieved 30 April, 2009.

Hunter, T. ‘Rule of Law, Separation of Powers and Judicial Decision  Making in Australia – Part 2.’ (2005) Faculty of Law/Law Papers, 13-16

Kiralfy, A. The English Legal System. (3rd Ed, Sweet & Maxwell, 1960)

Kmiec, K. ‘The Origin and Current Meanings of “Judicial Activism.”’ (2004) California Law Review, 1442-1477,  1463. http:/ Retrieved April 30, 2009.

MacAdam, A. and Pyke, J. Judicial Reasoning and the Doctrine of Precedent in Australia. (1998)

Roberts, R. Commonwealth and Colonial Law. (1966)

R v L [1991] 174 CLR 379

Tushnet, M. ‘Judicial Review in a Section 33 World.’(2002) 52 University of Toronto Law Journal, 89-100

Walsh, F. ‘A Reader in Commonsense Judicial Activism.’ Retrieved 30 April 2009..

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