The Doctrine of Precedent Prevents Judicial Activism Essay

The Doctrine of Precedent Prevents Judicial Activism


            There have been several controversies and opinions on the role of a judge in terms of judicial decisions. These opinions vary from one commentator to another, from one justice to another. For instance, Justice Michael Kirby believed that there is a need for judicial activism where the High Court will consider principle and rules that is helpful in the interpretation of laws that are in consonance with the community’s needs[1].

Basically, there are two binary opinions regarding this. The first school of thought pertains to the doctrine of precedent which advocates the basic principle that fairness in judgment will only be achieved if they are decided alike. In general, the doctrine operates in a process that involves the binding of a lower court to the decisions rendered by higher courts within the same hierarchy. Specifically, the court will have to follow the ratio decidendi and not the obiter dicta of the earlier decision or the precedent decision. This ratio decidendi is composed of the material facts and the rationale of the earlier case that is necessary to resolve the new case[2]. On the other hand, the second school of thought would be the judicial activism which advocates the independence of judges against state policies and principles. According to Michel Foucault, judges should have liberties regarding these subjects. They should be required to reason out and make constructive arguments in order to balance out law reform and policy formation[3].

However, judicial activism remained at bay because of the prevalence of the rule of law in the judicial method. It has been affirmed that judges who have followed the common law tradition have been consistent in following a pattern in reaching their decisions. According to Owen Dixon in his Henry E. Howland Memorial Prize address, the common law or the doctrine of precedent is one of the “high technique and strict logic” of all judicial methods[4].

He believes that there is a necessity for this because when people submit their cases in the court for decision and determination, they will assume and expect that it will be decided in accordance to principles and rules that are independent of the personal beliefs and feelings of the judge. The parties will ascertain that the decision will be as objective in the sense that the facts of the case will be determined in relation to a principle or a rule that has long been existed in the legal arena. This is the only way where the judicial decision can be a reasoned decision[5].

History of Judicial Methods

            Before the 17th century, it is observed that during the first 400 years of judicial method, judges decide in differing and various ways. The method employed by one judge is different from that of the other[6]. As a matter of fact, there have been four judicial periods that marked significant influences on the decisions of the internal and external court[7].

            The first period covers 1903- 1920. During this time, the decisions and the justices of the High Court were influenced by their roles as members of the Federation of Australia. Because Justices have been convention delegates and were the ones who drafted the Constitution, they have personal knowledge of the Constitution. This has two major influences on the way the Courts make decisions. First, there were limitations that were imposed on the state and the federal powers. As reinforced in the decision of D’Emben v Pedder, the state and the federal governments should not take part in each other’s affairs. Even when this is not under the constitution, the court has established this precedent through judicial decisions. Second, all the decisions made during that time was not really concerned on legalistic decision making but on establishing the various roles of the state and the federal government[8].

            During the period of 1920 to 1942, the High Court has been considered as the highest court in the nation with a larger and a different composition. With these new and altered circumstances of the court, the court has developed more expansive view on constitutional issues. The High Court has broadened the Federal Legislative powers. Moreover, the constitutional provisions were construed in their literal meaning rather than in their narrow meaning which was done by the original appointees of the court. This strict liberalism has been due to the changes in appointments in the court and the commencement of the World War II which expanded Commonwealth Defence Power[9].

            In 1942- 1972, the Uniform Tax Case decision have cause a change in the Commonwealth powers. It has also triggered a new era of judicial decision making. This is also the era where Chief Justice Dixon has elaborated the importance of “close adherence to legal reasoning”. In his speech in 1952, he maintains that this is the only way for the parties to maintain their confidence in the federal conflicts. Furthermore, he mentions that there is no other safer way to establish fair judicial decisions but strict compliance on legalism. This means that there should be a complete utilization of formal legal argument and there should be a “reliance upon technical legal solutions rather than the consideration of policy, or other issues and factors[10].” This has been commonly known as the Court of Dixon in the 1950’s to the 1960’s. During this time, there has been a healthy dose of judicial restraint among the decisions in the High Court. Moreover, the view that the system of law should be a “foundation and a steel framework of the community which they served” is very prevalent. Even when there is no evidence that this strict compliance will be useful and practical in judicial interpretations and there is a possibility that it is narrowing, it does not matter. Strict legalism advocates the idea of judicial restraint which will outlines the rule that each branch of the government will stick to its own function rather than defy the impositions of the court[11].

            In 1975 to the present, the strict adherence of legalism has continued with the appointment of Chief Justice Barwick. This is linked to the fact that he is a peer of Dixon and also to the lack of Bill of Rights to interpret. However, despite this, the 1970’s is much known for the rise of judicial activism due to interrelated and isolated factors. This has altered the reasoning process of the High Court of Australia as well as influenced the reasoning attitude of justices during that time[12].

            To illustrate, the case of Tasmanian Dams epitomized the new reasoning process of the court by interpreting broadly Commonwealth powers in the areas of External Affairs, Customs and Excise, and Acquisition of Property, and the limits of the Commonwealth Corporations Power. Another case would be in the time of the Mason court era where there is decision that does not only challenge constitutional powers but has accomplished something more which is the alteration of terra nullius — common law will not acknowledge the concept of a native title[13].

            The Mabo v Queensland Case is a very important decision that established the doctrine on the role of judicial determination. The case is on a group of Meriam people who brought an action in the High Court as a reply to the Queensland Amendment Act of 1982. This Act establishes a system of land grants for Aboriginals and Torres Strait people. The case is to decide whether or not the Meriam people have legal rights to the land of the Murray Island which were already annexed to Queensland. However, prior to this, the Meriam people have already lived and owned the land. During that time, the land has been considered as belonging to this group of people[14].

When Queensland further enacted the Queensland Coast Islands Declaratory Act 1985, titles of the lands were vested to the state of Queensland. The plaintiffs argued that they are entieled to the land because they are considered “as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands”. In other words, because they believe that they are entitled to the ownership of the land for the reason that they have already possessed it for a long period of time. On one hand, Queensland argued that the government has all the right to own the land by virtue of being a settled colony, the law of England shall govern the state’s transactions and affairs. In this case, Queensland has acquired “absolute beneficial ownership” on all the land in the territory[15].

However, the Court decided in favour of the plaintiffs. The Supreme Court of Queensland has decided that the Meriam people have the right to the Murray Island for the reason that they already have established a strong relationship to the islands. Furthermore, they have already regarded the land as theirs for an infinite period of time. The Judges have agreed that the common law accepts the concept of native title. This native title is established through the connection of the traditional rules and customs. The decision has further established the doctrine that the indigenous people have their own system of laws. Since these pre-existed the new sovereign, these laws should remain in force for as long as they are not explicitly modified by the legislature or the executive[16].

Judicial activism during the 1980’s would abolish the abovementioned doctrine. In general, it is a “paradigm shift toward judicial creativity and away from the strict legalism that had dominated the court since World War II”. Chief Justice Gleeson has enumerated the factors that influenced this movement. First would be the abolition of appeals to the Privy Council. The second would be appeals can no longer be brought as of rights. In practice, appeals are only brought if the appellant is sure that what is at stake for the case would justify the expense. However, with the new system, special leave of appeal is required in all civil cases. It is whether granted or refused by the High Court in relation to considerations imposed by them[17].

The Beginnings of Judicial Activism

            There are two prominent Justices who were considered as judicial activists. There are Chief Justice Gleeson and Justice Michael Kirby. While they do not agree completely to each other’s principles, still they advocate and support the use of policy and procedure in judicial decision-making. This is in contradiction to that of Justice Hayne who supported the traditional jurisprudence and precedent. Similarly, Justice Callinan has also criticized judicial activism and advocated the return to strict legalism as already established by Dixon in the 1940’s and the 1950’s[18].

            As a matter of fact, the Australian debate on judicial activism has relied on the caricature of judicial system that was advocated by Justice Dixon. At the onset, this school of thought is commonly known to be a principle where judges, most specifically the appellate judges are given untrammelled choices by the methods and materials of the common law. For the most part, it emphasized the creative side of judging because law is not an exact science. It recognizes the fact that every judge would or could come to various answers to disputes because they vary in talents and perceptions. They are not supposed to adopt positions that are restricted by earlier jurisprudence and precedent. Nevertheless, they are only required to analyzed and maintain a position in accordance to the existing legal materials[19].

            This is contrary to Dixon’s idea that common law reasoning should be provisional. The answers purported by judges, while are not absolute answers, should forever be faithful to the legal tradition that has already been imposed and it should also be limited by a range of rules and choices. Contrary to Dixon’s, judicial activism advocates “free-wheeling choice and innovation”[20].

            For the most part, it is a criticism to the strict legalism by Dixon. First, it is a criticism against the need of the judges to master the rules and principles of the common law. There is a great problem when it comes to the number of rules that the judges are expected to know. Aside from the size, it is also an accepted reality no judge could ever master all the rules and principles that need to be mastered. Moreover, these rules and principles are also criticized as a product and creation of fallible judges from the past. The most pressing problem lies on the fact that there is no easy way to weed out wrong decisions to right ones, and so this array of decisions which make up the rules and principles are inconsistent and confusing. Because of this, a judge has no other way but to be creative in deciding the cases. It is argued that strict legalism impedes the ability of the judge to be creative because common law reasoning is criticized as sloppy, undisciplined, and inconsistent[21].

            It is believed that pre-existing legal doctrine does not have a guaranty of solving all problems. This is because they are only developed by human beings. They can be ambiguous because they are only reduced to words and they are a product of cultural and social circumstances. They can be unsuited for application in some circumstances. At times, they can also be in need of modifications or development in consonance to the society’s changing times and to keep pace with the society’s expectation of justice[22].

            It is important that courts should not be blinkered by the determinacy condition which purports the idea that every legal question has a pre-determined outcome. Law can never be a hard science where the answers to every legal question are determined by the intrinsic components of the discipline[23].

            Judges should be given a chance to “permissible discretion”. In this sense, the outcome of a case will not be solely determined by the legislation. Judges can exercise a limited discretion to reconsider the common law’s application to maintain the society’s expectations of justice[24].

            The objective and aim of judicial activism is really “the maintenance of the connection between law and the values of the society it serves”. It is important for healthy relationship not only among the departments of the government but also to the people that expect the utmost implementation of justice. Rather than seen as an intrusion to the legislative function, it can be viewed as restatement and modification of old legal principles for new circumstances. Also, by being open to changes and modifications, judges will promote civic conversations with the society and the people.

The Fate of Judicial Activism

            Judicial activism has become a broad and general term for different dimensions and aspects which a judge could be considered an activist in relation to his duties in rendering decisions. The most famous and well-documented of them all would be the judicial review. This includes judicial reviews of the legislative and the executive activities. These involve the ability of the courts to scrutinize the manner in which power in the legislature and the executive department has been exercised. The performance of both the executive and legislature’s obligations to their citizens are determined by the court in terms of their constitutionality and lawfulness[25].

            In this way, judges that review legislative and executive action are considered to have an important role as guardians of democracy. The task of the judge in this case is not to foist his /her own political views and perceptions or his /her personal views. This would an effective way to aid citizens that seek redress against the actions of the executive governments that aggrieved them. This would be the judicial contribution for the improvement of the standards of governance[26].

            However, despite these benefits that entail on the ability of the judicial power to actually stand on their own independent stance as the other departments of the government. Still these judges need to fulfil their functions in relation to the application of the rule of law. The judicial method will still be likewise governed by the rule of law that embodies that principle and rules that they should observed[27]. The judicial method should at all aspect and at all times shall be governed by the operation of law. In most of the cases decided in the superior courts, it would be the rule of law that will dictate the outcome of the disputes. The task of the judge is to reconcile relevant legal principles and apply them to the dispute at hand. In most cases, it is the legislature that will formulate the legal principles expressing the just outcome of the dispute. The statutory expressions of justice will also serve as supplementary principles in the common law. The judges will have to follow the principles that they themselves have developed. These principles are not just principles that were formulated by them; these are principles that have stood the test of time. These principles will then be applied to cases with the same facts and issues[28].

            Moreover, in cases where the common law principle is too distant from the facts under consideration, the courts are given the chance to distinguish the [principles that are mot applicable and they will not be forced to enforce them. Also in cases where the application of the principles will lead to injustice, the court will also have discretion to reconsider their application. However, even when the courts are given the discretion to decide in cases like these, the judges are still expected to use all the judicial tools and techniques of the principle of the precedent, policy, and logical reasoning. This is because a judge is expected to follow these tools so that he/she will be consistent with the how the community expects and perceives the implementation of justice[29].

            Moreover, judicial activism likewise faces controversies and criticisms. One of which is that judicial activism would encourage the judiciary to exceed their role in the separation of powers. The constitution is the main source of this separation which is assumed to be the rule of law. Second, the role of the judge will be altered in such a way that we will no longer be able to know him/her. The heroic style of judging is considered to be a catastrophic development. Third, with judicial activism, the judicial stream has risen above its source. It has exceeded its powers in the interpretation of the laws. Fourth, it is also considered as the court’s grasp of political power. It is only through decisions based on precedent that the original meaning of the constitution will prevail[30].

The Prevalence of Principle/Doctrine of Precedent

            Judicial activism did not have much history because of the prevalence of the doctrine of precedent. The legal system primarily aims to advocate uniformity and consistency. The only way to uphold the rule of law and to maintain public confidence is to treat like cases alike.  Also, even when there are situations where the facts and situations are different, there will still be consistency because the operation of law will only yield one answer. Answers to disputes are always discoverable by looking hard for the relevant principles and rules in statue books and in jurisprudence[31].

            As already reiterated by the principles laid by Dixon, common law has a “high technique and strict knowledge” among all the judicial methods. This is because reason is essential to common law judicial method. They are structured in such a way that they permit the parties to see the extent to which their arguments have been understood and accepted. Second, they should be structured in such a way that the reasons clearly explain the reasoning process. Third, those reasons must declare and apply a principle or rule in a level of generality that transcends the facts of the case. Because of these, the common law system is accorded as the most reliable judicial method by Dixon[32].

            Dixon argues that to abandon the Common Law system would lead to the destruction of the judiciary. The law is an autonomous discipline and judicial method should not b influenced by political, social, or economic factors. He emphasized that it is an error to believe that the common law system will not be able to meet the demands of the changing times. These demands and changes according to Dixon can still be addressed by deeper and more philosophical conceptions of justice. The common law discipline is just not compatible with a judge who alters the legal rule or principle because it no longer coincides with the present circumstances[33].

            On the argument that precedents are rarely consistent and sometimes erroneous because they are made and formulated by fallible judges, it is now a rule that courts can decide whether to follow or overrule its own precedents which they believe to be wrong. Even though this is rarely exercised, the court as a general rule has the power to overrule their precedents. This freedom and power is given to courts for them to cope with the ever changing and evolving nature of the society. Wrong precedents need to be replaced by right and good ones[34].

            Moreover, another legalism advocate Professor Ronald Dworkin rejects the use of theories, principles, or values that come from outside the legal system. In this sense, cases can only be decided by the application of legal materials such as precedents, concepts, doctrines, and principles, rules, statues, and other authoritative writings[35].

            Stare Decisis for the most part creates an expectation that the law will remain as it is stated and as it is written in the precedent. Certainty is the key value of this doctrine. It allows the community to know the law. It would also be a reliable basis for them to plan their activities in reliance to the laws adhered by the court[36].

            Most importantly, it established the legitimacy of the court system. Because of the principle of stare decisis or doctrine of precedent, courts have a reputation of finality, stability, consistency, and coherence. This is because adjudication is seen by the community as according to the rule rather than according to the whim of the judges. It operates as a force against arbitrary and ad hoc decision-making. Most importantly, it is impersonal because it does not involve the internal feelings, perceptions, and views of the judge[37].

            Certainty would also further social and economic values by encouraging litigants to settle their claims rather than go to court with the objective of changing the law. It would also help the court lessen the cases that they need to be decided because they need not to decide all cases that are brought to them. In the words of Justices O’Connor, Kennedy, and Souter of the United States Supreme Court, “we recognized that no judicial system could do society’s work if it eyed each issue afresh in every case that raised it… Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable[38].”


            It can be gleaned from other discussions that the judicial system of Australia has followed a common law doctrine up to the present times. Although the rise of judicial activism has persisted up to now, it only stirred controversies for only a short period of time. Judicial activism have not prevailed because even though it is a criticism to the principle of precedent, it is in itself criticized by the very material that it criticizes, that is, the doctrine of precedent.

            The doctrine of precedent has remained to be a reliable judicial method that courts and justices alike deemed it indispensable for the implementation of justice among the citizens.

[1] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 13.

[2] A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) 66.

[3] Fiona Walsh, A Reader in Commonsense Judicial Activism (Year) 21.
[4] MH McHugh, The Judicial Method (1999) 37.
[5] Ibid, 37.
[6] Ibid, 37.
[7] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 13.

[8] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 13.
[9] Ibid, 13.
[10] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 14.
[11] Ibid, 14.
[12] Ibid, 14.
[13] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 15.
[14] Mabo v Queensland (1992) 175 CLR 1.
[15] Ibid.
[16] Mabo v Queensland (1992) 175 CLR 1.
[17] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 15.
[18] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 17.
[19] John Gava, Opinion: Judicial Activism. (Year), B.
[20] Ibid.
[21] John Gava, Opinion: Judicial Activism. (Year), B.
[22] Justice Raymond Finkelstein, The Role of the Judge: Judicial Activism and the Rule of the Law (Year), 25.

[23] Ibid, 25.
[24] Ibid, 25.
[25] Justice Raymond Finkelstein, The Role of the Judge: Judicial Activism and the Rule of the Law (Year), 24.
[26] Ibid, 24.
[27] Ibid 24.
[28] Justice Raymond Finkelstein, The Role of the Judge: Judicial Activism and the Rule of the Law (Year), 24.
[29] Ibid, 26.
[30] Tina Hunter, Rule of Law, separation of powers and judicial decision making in Australia – Part 2 (2005) 16.
[31] Justice Raymond Finkelstein, The Role of the Judge: Judicial Activism and the Rule of the Law (Year), 26.
[32] Justice M H Mchugh AC, The Judicial Method (1999), 37.

[33] Justice M H Mchugh AC, The Judicial Method (1999), 37-38.
[34] BV Harris, Final Appelate Courts Overruling Their Own “Wrong” Precedents: The Ongoing Search for Principle (2002), 408.
[35]Justice M H Mchugh AC, The Judicial Method (1999), 37-38., 45.
[36] BV Harris, Final Appelate Courts Overruling Their Own “Wrong” Precedents: The Ongoing Search for Principle (2002), 408.
[37] Ibid, 413.
[38] Ibid, 414.