Critical Analysis of Judicial Activism

Running head: BUSINESS LAW
Business Law
Name of the Student
Name of the University
Author Note

1BUSINESS LAW
Part A
Critical Analysis of the secondary source on Judicial Activism, ‘Opinion’ by John Gava,
law Faculty of the University of Adelaide
The Article ‘Opinion’ by John Gava gives a picture of the thoughts of Sir Owen
Dixon’s idea of strict legalism1. As argued by Dixon, the concept of judicial activism is
misleading as it refers to the untrammelled choices given to the judges by the common law.
The author of the Article points out that Dixon’s idea of strict legalism does not comes under
the purview of mechanical jurisprudence which speaks in favour of the judges regarding the
judgements made using logic interpretation. The author argues that Dixon’s critics did not
accept the fact that he appreciated the creative feature of appellate judging. The argument of
Dixon in his ‘Concerning Judicial Method’ regarding the bindings of the judges by the rules
of common law by implementing external standard although gives a view that he was in
favour of judicial activism, however it never gave a clear and confirmed picture2. It has been
argued that the judges needed to master the vast domain of rules and regulations that forms
the common law. However, it has been counter-argued that it is not humanly possible for the
judges to master everything that came under the purview of common law. Therefore, it was
put forwarded that the common law judges need to be creative while delivering judgment of
cases. It has been argued in the Article that the practice of strict legalism is a medieval
tradition. It is not expressly laid down by the law, but by accident and need of the
circumstance. The Author has showed confusion as the view of the democracy pertaining to
the application and implementation of judicial review3.
1Gava, John. "Judicial activism [Opinion.]." (2007) 29.9 Bulletin (Law Society of South Australia) 6.
2 Heilman, Raymond J. "Judicial Method and Economic Objectives in Conflict of Laws." (1933) 43 Yale LJ
1082.
3Gava, John. "Judicial activism [Opinion.]." (2007) 29.9 Bulletin (Law Society of South Australia) 6.