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Difficulties in gaining access to the law

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brendan:

--- Quote from: "goosefraba" ---Also I see you've used the Trigwell case as an argument that courts shouldn't be involved in law-making. But don't you think that in this case, because the judge was conservative, this led to an unjust result? And sometimes it's necessary for judges to fill gaps left in legislation to ensure justice for the parties?
--- End quote ---


Then that's a problem for the Parliament not for the judiciary.

"Courts inflict great pain and distress on those who lose litigation and on those adversely affected by principles laid down in litigation. The public will put up with pain of that kind which is caused by parliamentary legislation ? not always, but most of the time. The public will also put up with a great deal of the pain caused by litigation if it is seen to be the result of long-established rules which could be, but have not been, changed by parliamentary legislation. It is much less easy for the public to put up with the pain if it is caused by the world view of one judge, or a bare majority of appellate judges; or if the courts are in discord; or if judicial opinions are in a state of constant flux as they swing back and forth or spiral down in sickening fashion. What one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hence the capacity of the law to command obedience." Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" [2004] OtaLRev 2

As Judge Learned Hand said in his dissenting opinion in United States v Shaughnessy (1952) 195 F 2d 964 at 971 (2nd Cir): ??Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.??

Oliver Wendell Holmes, former Justice of the Supreme Court of the United States, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)

brendan:

--- Quote from: "goosefraba" ---

Well that was an examination question. I guess laws in general  :?
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The same fundamental principles apply by former Justice of the High Court, Justice McHugh, said that he was pretty legalistic when it came to statutes and the Constitution, but less so when it came to the common law.

Pencil:

--- Quote from: "brendan" ---Oliver Wendell Holmes, former Justice of the Supreme Court of the United States, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)
--- End quote ---


Ha that's funny

brendan:
In an interview Sir Ronald Wilson undertook in 1997 in the light of Bringing Them Home, he was asked whether he would have taken a different approach to adjudication if he were to return to the High Court today. He responded: "I don't think that I would, but because my dominant feeling on the bench is that I have sworn to 'do justice according to law'. And it's that 'according to law' that makes it so damned difficult... the two decisions that I would not wish to confront again was the Koowarta decision and secondly Mabo #1. I wrestled for ages with Mabo #1 and I still can't read section 10 of the Racial Discrimination Act in such a way as to find that it applies and so I dissented. Mind you, I wasn't alone. It was 4:3. So two other minds of some eminence reasoned along same lines, but I was longing to find with the majority. So you've posed a conundrum and frankly my only defence is that I gave it my best shot in these two cases but was compelled by my legal reasoning the way I did. It was a great honour to serve on the High Court but I can't say it was the highlight of my professional career. It was damned hard work". (From Julian Morrow, "Interview with a Commissioner", Blackacre (1997) 27, 29).

brendan:
1 or 2?

I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.

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