Introduction
This essay concerns what degree of power judges should possess to change law. Essentially where on the spectrum between pure Declaratory Theory and condoned aggressive judicial activism lies the best balance between stability and modernisation. I argue judges should possess the power to alter precedent and form new statute interpretations but restricted to incremental steps only, halting the modern trend toward the excesses of judicial activism .
In effect I argue for the contemporary jurisprudential state. Section II details the importance for legal evolution, and incremental change is enough to keep up with said societal changes. Sections III-IV elaborate on the dangers of excess judicial activism, and hence why limiting change to only increments is essential.
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Societal evolution
Societies are never stagnant; laws must evolve in reaction. Legislation will always lag due to this reactionary nature. Judges must be empowered to change precedent and reinterpret statute to develop often archaic law to fit modern societal contexts. [expand] A clear example of this is found in NZRFU case , in the courts decision to adapt their test of standing to include public law aspects reflective of the unprecedented press-fuelled public interest in the private law case.
Such modern-day considerations were unbeknownst while common laws for standing were created, hence judges must be empowered to evolve law to ensure the fairest outcome.
Judges as fair representatives of society
The need to evolve law must not be taken too far [expand], as judges cannot claim to fully comprehend let alone totally represent “contemporary community values” to justify dramatic judicial activism. They are unelected nor strongly compelled to act according to the community, the Judicial Conduct Board being only the nuclear option .
Every ruling inescapably is tinged with personal bias; certain cultural viewpoints and political positions will always be disproportionately considered over others, despite any opposite intentions. And they can never be held to account for biased decisions4 Since individual judges are unqualified to gauge the societal position nor direction, it is irresponsible to permit one to forge ahead with unilateral dramatic changes to the law, down a possibly different path than society.
Prendergast CJ chose such a path in his Wi Parata v. Bishop of Wellington judgement, cementing in New Zealand common law the principle that the Treaty of Waitangi was a simple nullity, which was contrary to the direction of societal attitudes towards the treaty. This hence undermined the courts ability to act in accordance to the shifting societal attitudes until the Privy Council affirmed it as a legitimate legal document. Any changes they make must be restrained and incremental, ensuring judicial rulings stay on the same course as society, and do not outstrip societal progress nor lag. Because to “function effectively courts cannot afford to be too far ahead [or] behind in their thinking.”3
Importance of certainty
Even ridiculously assuming each judge had the perfect gauge “contemporary community values”, their position and direction, it would still be unacceptable for judges to make sweeping unilateral changes to the law. Because “contemporary community values” are an unknowable measure for people to be held up against.
So, judges should never deviate too far from existing precedent, only incrementally considering they are applying new developments, in the law retroactively. By acting incrementally citizens can maintain a degree of certainty on how a court would rule, which is imperative for three reasons.
“Law should be accessible to all and should be capable of being easily understood” , to disadvantage citizens on account of law unbeknownst to them or not existing at the time of the offence is unethical. Fear of retroactive judges’ decisions would undermine the citizens confidence to act freely, stare decisis allows people to “plan their affairs with some assurance that they are not running into legal snares” . Such fear confines citizens to narrower more paternalistic code of code of conduct in which Hart argues “the only liberty that could co-exist... is the liberty to do those things to which no one seriously objects. Such liberty is clearly nugatory.” .
Clearly demarcated laws are necessary to strongly deter citizen wrongdoing by sure threat that courts would rule against them otherwise. [expand] Uncertainty raises ethical questions and undermines the judiciary’s power to deter wrongdoing and inspire prosperity via confidence through certainty, hence all necessary judicial legal developments must be made incrementally
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