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Spier, Jaap --- "The Rule of Law and Judicial Activism: Obstacles for Shaping the Law to Meet the Demands of a Civilized Society, Particularly in Relation to Climate Change?" [2010] ELECD 299; in Faure, Michael; van der Walt, André (eds), "Globalization and Private Law" (Edward Elgar Publishing, 2010)

Book Title: Globalization and Private Law

Editor(s): Faure, Michael; van der Walt, André

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447608

Section: Chapter 13

Section Title: The Rule of Law and Judicial Activism: Obstacles for Shaping the Law to Meet the Demands of a Civilized Society, Particularly in Relation to Climate Change?

Author(s): Spier, Jaap

Number of pages: 29

Extract:

13. The rule of law and judicial activism:
obstacles for shaping the law to meet
the demands of a civilized society,
particularly in relation to climate
change?
Jaap Spier*
There was a time when it was thought almost indecent to suggest that judges make
law ­ they only declare it. Those with a taste for fairy tales seem to have thought
that in some Aladdin's cave there is hidden the Common Law in all its spendour and
that on a judge's appointment there descends on him knowledge of the magic words
Open Sesame. Bad decisions are given when the judge has muddled the pass word
and the wrong door opens. But we don't believe in fairy tales any more.1

`It [the rule of law] may well have become just another of those self-congratulatory
rhetorical devices that grace the public utterances of Anglo-American politicians.
No intellectual effort need therefore be wasted on this bit of ruling-class chatter.'2

In theory ... one could construct a model of judicial activism which accorded top
judges ... complete liberty to decide what they wanted to decide. ... At the other
end of the spectrum one could imagine a model which gives judges no leeway what-
soever to use their own discretion and which effectively requires them to serve as
electronic calculators ... Between these two extremes ­ a lottery machine on the one
hand and a calculator on the other ­ there are innumerable intermediate positions.
What differentiates them is the extent to which ...