Business Law Assignment: Judicial Activism Article Analysis

This report critically analyzes two articles related to judicial activism in business law. Part A examines John Gava's 'Opinion,' focusing on Sir Owen Dixon's concept of strict legalism and its relation to judicial activism and mechanical jurisprudence. Part B analyzes Alan Anderson's 'The Rule of Lawyers,' exploring the role of lawyers and human rights activists in shaping judicial interpretations and the potential for judicial overreach. Part C provides a comparative analysis of the two articles, highlighting their contrasting perspectives on judicial activism, the influence of lawyers, and the evolving legal landscape. The report references key legal concepts, arguments, and viewpoints from the articles to provide a comprehensive understanding of judicial activism within the context of business law.

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

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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.

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Part B
Critical Analysis of a peer-reviewed journal, ‘The Rule of Lawyers’ by Alan Anderson
The Article gives a picture of the West, where the civil right activists have
experienced the court as a receptive forum4. As held by the author, the High Court has been
less inclined towards activism in recent times and therefore it is making the activists to
explore new avenues to get heard. It is so argued in the Article that the lawyers now seek to
interpret law so ambiguously that the judges are bound to put their own input into them,
adding their own prejudices. The author points out that the judiciary requires a reformation
for being insufficiently representative. It is also put advised by the author that the judiciary
might lose its significance if it only interpret and practise the law; instead, the role of the
judges must resemble that of the judges, making them a part of the broader community. The
author argues about the distinction between creating and interpreting law, as often the Judges
deal with legislations and regulations with their own experience. It can be also analysed that
the author has pointed out the human rights as ambiguous, either for their complexities or for
their ambiguity with jurisdiction and implementation. The article points out that the judicial
activists tend to stretch the constitutional rights in ways that are not foreseen by its
draftsmen5. On a later stage, the author comments on the wisdom of the judges and cites
example of recent years where the insight of the criminal justice system of the Australians
pertaining to the fulfilment of punitive, deterrent, protective as well as retributive purposes
has been discussed. The author points out the grafting of the Bills of Rights into other
common laws gives a picture of judicial activism as it was the judiciary who came up with
the recommendation to separate them6.
4 Anderson, Alan. "The rule of lawyers [Human rights activists and judicial activism.]." (2005) 21.4 Policy: A
Journal of Public Policy and Ideas 34.
5 Heydon, Dyson. "Judicial Activism and the Death of the Rule of Law." (2003) 47.1-2 Quadrant 9.
6 Anderson, Alan. "The rule of lawyers [Human rights activists and judicial activism.]." (2005) 21.4 Policy: A
Journal of Public Policy and Ideas 34.

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Part C
Comparative Analysis of the two Articles
The first article talked at length about the concept of judicial activism citing the
perception of various jurists. While the second article focused more on the changing norms of
the legal scenario including the concept of judicial activism. The first article talked about the
views and opinion of Sir Dixson on judicial activism. In this article, 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 picture
While the second one is named as ‘the Rule of Lawyers’ which stretches the concept
of judicial activism and includes the role of advocates in it. . It is so argued in the Article that
the lawyers now seek to interpret law so ambiguously that the judges are bound to put their
own input into them, adding their own prejudices. The author points out that the judiciary
requires a reformation for being insufficiently representative. It is also put advised by the
author that the judiciary might lose its significance if it only interpret and practise the law;
instead, the role of the judges must resemble that of the judges, making them a part of the
broader community. The author argues about the distinction between creating and
interpreting law, as often the Judges deal with legislations and regulations with their own
experience. It can be also analysed that the author has pointed out the human rights as

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ambiguous, either for their complexities or for their ambiguity with jurisdiction and
implementation.
Bibliography
Anderson, Alan. "The rule of lawyers [Human rights activists and judicial activism.]." (2005)
21.4 Policy: A Journal of Public Policy and Ideas 34.
Gava, John. "Judicial activism [Opinion.]." (2007) 29.9 Bulletin (Law Society of South
Australia) 6.
Heilman, Raymond J. "Judicial Method and Economic Objectives in Conflict of Laws."
(1933) 43 Yale LJ 1082.
Heydon, Dyson. "Judicial Activism and the Death of the Rule of Law." (2003) 47.1-2
Quadrant 9.