The IUP Journal of Law Review
Between Strict Legalism and Judicial Activism

Article Details
Pub. Date : Jan, 2021
Product Name : The IUP Journal of Law Review
Product Type : Article
Product Code : IJLR10121
Author Name : Osayd Awawda
Availability : YES
Subject/Domain : Arts & Humanities
Download Format : PDF Format
No. of Pages : 14

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Abstract

In 1915, the Hon Sir Owen Dixon was sworn in as Chief Justice of Australia. On that occasion he said: "It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safer guide to judicial decisions in great conflicts than a strict and complete legalism." In response, this paper argues that judges do not adhere to the Hon Sir Dixon's view that strict legalism is the safest guide for judges. The paper avers that judicial activism is currently the norm and there is no room for complete legalism in the modern state's judiciary. The paper explains the reasons behind the current drift from Hon Sir Dixon's view. Then, it demonstrates the current situation of judicial activism as the norm in the judicial practice, and lastly justifies the absence of a place for complete legalism in the modern state's judiciary.


Introduction

In 1915, the Hon Sir Owen Dixon was sworn in as Chief Justice of Australia. On that occasion he said: "It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safer guide to judicial decisions in great conflicts than a strict and complete legalism."1

Many criticisms of the Dixonian principle had been delivered against it. This principle was included in his Honor's former speech, that complete legalism is the safest path for judges in controversial issues to stay reliable. One of these critics claimed that either the Hon Sir Dixon's view is naive, or it is a "noble lie intended to hide the obvious freedom open to judges when they decide cases".2 Another saw his view as a belief that judges are obliged to use common law principles as the only external source for their decisions' legitimacy, rather than their opinion about what the law should be.3 Judicial Activism is considered the opposite of the complete legalism described above by the Hon Sir Dixon. However, the term is very controversial, and a lot of attempts had been done in order to define it, but for the purpose of this paper, judicial activism is "the


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