From Mike Smiths website. TUESDAY, 11/2/14. His Honour, Mr John Dyson Heydon AC QC, on judicial activism and the rule of law. Quadrant Magazine Law January 2003, Volume XLVII, Number 1-2. Judicial Activism and the Death of the Rule of Law. Dyson Heydon[1] I AM EXTREMELY HONOURED to have been invited to address this Quadrant dinner. I regard the institution as a vernal island which one can periodically visit as an escape from the great polluted oceans of cant washing around it. THE RULE OF LAW ON FEBRUARY 19th, 1941, George Orwell published his celebrated pamphlet The Lion and the Unicorn. In analysing the superiority of English life to that of Axis and communist Europe, he said: The gentleness of English civilisation is mixed up with barbarities and anachronisms. Our criminal law is as out of date as the muskets in the Tower. Over against the Nazi Storm Trooper you have got to set that typically English figure, the hanging judge, some gouty old bully with his mind rooted in the 19th century, handing out savage sentences. …People will accept them (and Dartmoor, and Borstal) almost as they accept the weather. They are part of “the law” which is assumed to be unalterable. Here one comes upon an all-important English trait: the respect for institutionalism and legality, the belief in “the law” as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible … The totalitarian idea that there is no such thing as law, there is only power, has never taken root … The hanging judge, that evil old man in scarlet robe and horse hair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England. He is a symbol of the strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape. Those observations of the Old Etonian ex-policeman and socialist correspond with a deep tradition of the common law. In the great case of Entick v Carrington (1765) the Court of Common Pleas set aside warrants purportedly justifying a forceful seizure of the plaintiff’s papers. Lord Camden CJ gave instructions that the notes from which he gave his decision should be burned, but by accident they were preserved. According to them, he said, in rejecting an argument that even if the warrants were otherwise unlawful, they were justified on the ground that they were employed to seize documents which were seditious libels: If it is law, it will be found in our books. If it is not to be found there, it is not law … [With] respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. Continue reading His Honour Mr John Dyson Heydon AC QC on judicial activism and the rule of law on Mike Smiths website.
Posted on: Tue, 11 Feb 2014 01:28:49 +0000
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