Judicial Power: Past, Present and Future

Abstract

This essay, written in the fiftieth year after its author’s doctoral thesis on “The Idea of Judicial Power: with special reference to Australian federal constitutional law”, and the thirtieth year after the author’s Maccabaean Lecture on “A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence”, was delivered as a lecture for judges, members of Parliament and other interested persons, in the Hall of Gray’s Inn, London, on 20 October 2015. It reflects on the morally, politically and constitutionally significant reasons for regarding the authority of judges in mature political communities as appropriately limited to the application of law established in the past. This application should be with an eye to the permanent moral truths of genuine human rights, but the judiciary has no claim to be the exclusive forum for determining and giving effect to such rights. The essay considers in detail some important cases decided at the highest level, as illustrations of its theses about (1) appropriate judicial reform of the common law, (2) inappropriate and flawed attempts at judicial reform of common law, (3) flawed and erroneous enforcement of human rights against legislatures, and (4) the profoundly misguided ECtHR “living instrument” jurisprudence. Ten theses about judicial power are enumerated and given some explanatory defence.

Keywords: judicial, judges, separation of power, rule of law, human rights

JEL Classification: K10