From 'Rule of Law' to 'Legal State': A Time of Reincarnation?
Macquarie Law Working Paper No. 2007-12
Presented at Public Law Weekend, Australian National University, Canberra, November 9-10, 2007
14 Pages Posted: 7 Dec 2007
Identifies and supports a transition in public-law theory, within common-law jurisdictions, from a reliance upon legality grounded in adjudication (the 'rule of law' as conceived by Dicey, but an expression whose meaning is otherwise ideologically both potent and elusive) toward a reliance upon the European idea of legality grounded in legislation (the 'legal state', German, Rechtsstaat).
Then the so-called problem of 'judicial activism' (as denounced by Australian High Court Justice Dyson Heydon) is not a misuse of the common law, but rather the use of the common law where a predominance of legislation would be preferable. One should be wary of praising judicial licence when it is used to pursue values that one prefers, since the same licence could equally be used to pursue contrary values. Yet the judge should be 'active' in the sense of adhering to a 'democratic imperative' through fulfilling the legislature's intentions and not permitting those intentions to be subverted through inappropriate legal technicality.
Keywords: rule of law, Dicey, legal state, Rechtsstaat, judicial activism, Dyson Heydon
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