When, as sometimes happens in law, precedence loses legal legs to stand on, is inappropriate or even insufficient to deal with a matter at hand, does necessity become the mother of invention and justify a judge making the law?
These and other pertinent questions are adroitly dealt within one of three recent books by Justice Professor Oagile Key Dingake, PhD, entitled: In Pursuit of Justice – Examining the intersection of Philosophy, Politics and Law. Notion Press of India published the books which are available through Amazon, Flipkart, Amazon Kindle, Kobo and Google Play.
Every country can perhaps cite a judge who was pre-eminent in the development of the law to fit changed societal circumstances. In the United States of America, the Warren Court was considered activist and critics charged that the Chief Justice was engaged in lawmaking.
In the United Kingdom, Lord Denning was accused of utilizing the courts as instruments of lawmaking, especially during his tenure as Master of the Rolls in the Court of Appeal. In Botswana, lawyers still talk of spirited intellectual battles between one Justice Kirby - a reputed conservative legal mind - of the Court of Appeal in that country and Justice Dingake, a reputed liberal mind, who was often regarded by the former as too liberal.
As one senior Botswana lawyer and former cabinet minister once wrote: if you need to confirm the law as it stands, the ideal judge to appear before is Justice Kirby, but if you wanted to test the boundaries of the law, then you are better off appearing before Justice Dingake.
It is not possible in a newspaper review to do justice to this entire book. As a result, I discuss my impressions of the book in broad terms, choosing themes that define it. This book is essentially about the workings of a judicial mind. It teases out controversial questions around whether judges make law or simply interpret it. It goes further to interrogate the question of whether judges’ backgrounds, experiences and values matter in the adjudication process.
To ask the question whether judges make law in a constitutional democracy in the context of separation of powers is to court controversy. This is so because this question often divides the legal fraternity, not least the judges.
Quoting the renowned philosopher Jeremy Bentham, Justice Dingake dismisses the argument that judges do not make law as ‘childish fiction’. Interestingly, he contests the philosophical view of some judges that ‘the law is what judges say it is and says it is somehow misleading in so far as it may be construed to mean that judges are permitted to be the law unto themselves.
Often regarded as a judicial activist around Africa, Justice Dingake unapologetically comes to the defence of judicial activists. He says that judicial activists acknowledge that novel situations may require innovative judicial thinking and the courage to depart from precedent that no longer serves contemporary challenges.
He contends that judicial activists acknowledge that reliance on precedent is not always possible, or even desirable. Changes in social or political conditions sometimes require a new law, and old principles may simply be entirely inappropriate for circumstances not previously contemplated.
It is Justice Dingake’s considered view as expressed in this book that in a world where the courts are increasingly mandated to police the exercise of public power and keep it within the limits of rationality, reasonableness, fairness and proportionality, a case can and must be made for judicial activism.
In pedestrian debates and sometimes in legal tussles within the hallowed halls of the judiciary – judicial activism generally has a negative connotation. It is usually understood to mean judges who may have a political agenda, are too liberal and too quick to impose their political views on society.
On the contrary Justice Dingake argues that the judges who are regarded as judicial activists today are generally progressive judges who have the courage and intellectual gravitas to appreciate constitutional values and the imperative that judges must breathe life into the constitution.
He goes to great lengths to point out that judicial activism does not mean judicial adventurism, which is a consequence of plodding through the law without putting forth intellectually persuasive reasoning as a basis for a decision in a particular manner.
He quotes the eminent US jurist and Judge, Cardozo, and maintains that a judge is not a knight errant, ‘roaming at will in pursuit of his ideal of beauty or of goodness’. He is to draw his inspiration from consecrated principles.
I highly recommend this book to parliamentarians, members of the executive and the judiciary. This is because the book shows how philosophy, law and politics may collide and collude to yield a particular judicial determination, especially in value-laden disputes such as those dealing with electoral disputes, same-sex marriage and the rights of the vulnerable and marginalized groups including key populations.
Students of philosophy and politics would likely also find the book very interesting. The book, like Judges by the same author which I have had the pleasure and honour to read and review, is written in simple language.
*Winner of the SADC Media Award (2008) and 10 other journalistic awards, Moses Magadza is a PhD student with research interests in framing, agenda-setting, priming and critical discourse analysis.