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Barry Lane
18 July, 2007  
Judicial "activism"

Barry Lane revisits one of the great pieces of 20th century judicial activism, Donoghue v Stevenson. Nowadays, an activist judge is one who upsets political conservatives and their claqueurs in the press. It’s a smear that is supposed to work as a soundbite


imageWhen I was a kid I sometimes ran home from school with the piece of doggerel ringing in my ears: “Catholic dogs look like frogs in and out the water.”

I didn’t spend much time, as I recall, trying to get to know those who were chasing me or why they thought I had the characteristics of a common amphibian. This was my introduction to name-calling.

After I got home and complained my mother would, in her reassuring, homespun way, simply say that “sticks and stones will break your bones but names will never hurt you”.

I should say that I’ve never been physically assaulted or denied education, finance or a job on the basis that I was brought up Catholic. Further, I’ve never been the subject of overt bigotry based on race, gender, sexual orientation or physical stature.

Unfortunately, many in our society are subject to such indignities and injustices, on a daily basis.

It was against that background that Janet Albrechtsen’s piece in The Australian last Saturday (July 14) struck a resonating chord. She was reviewing a book by the American academic Jason L. Pierce entitled Inside the Mason Court Revolution: The High Court of Australia Transformed.

imageOf the book, Albrechtsen (pic) wrote:

“The real attraction of this new book is for those of us interested in the future of Australian democracy and what judges really think about the role of the judiciary. In short, who ought to be calling the shots, elected politicians or tenured judges? What judges think about this matters. Once on the bench, judges have enormous power to shape our democracy.

“If there is heated debate in the community about judicial activism, then sizzling may describe the ructions within the judiciary about this issue.”

The whole over-wrought Activist v Literalist wrangle had its origins in the US. Over the years I’ve embraced many imports from the Americans – personal computers, 747 airliners and Post-it notes – but some of their euphemisms, along with their embedded bigotry, are not among them. And that’s what Albrechtsen’s article and the book she was reviewing say to me: judges who are judicial “activists” are not welcome in our courts.

How does a judge who is a judicial “activist” differ from other judges? Well, it appears, and I’m by no means certain about this because I haven’t seen a considered definition of the term, that an “activist” judge is one who upsets those who subscribe to views shared by “conservative” politicians and their supporters by discharging their judicial obligations in a way which doesn’t accord with those views.

It’s now commonplace for politicians and others expressing views in public to resort to euphemisms (i.e. dog-whistling) to finger the mischief, view or person they wish to demonise.

In an adversarial world, instant product differentiation is essential to getting your message across, particularly when restricted to a “doorstop, sound-bite or ten second grab” on the evening news.

I’m not necessarily against things being “short and sweet”, however problems associated with the state of the judicature, housing affordability or why Collingwood hasn’t won a match lately are not really susceptible of discussion, let alone resolution, in the time it takes to render a “doorstop”. That’s where the euphemism comes into its own: instant recognition and instant denigration.

imageI’ve disintered some of the memorable words from the 20th century’s landmark instance of judicial activism, Donoghue v Stevenson [1932] AC 562, where Lord Atkin (pic) said:

“The sole question for determination in this case is legal: do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health…

“It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty…

“I venture to say that in the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey, and the inherent adaptability of English law be unduly restricted. For this reason it is very necessary in considering reported cases in the law of torts that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges…

“It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-beer bottle in the United States before it appeared in Scotland but there it brought a liability upon the manufacturer…

“My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be imageaffirming the proposition that by Scots and English law alike a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products is likely to result in injury to the consumer’s life or property owes a duty to the consumer to take that reasonable care.

“It is a proposition that I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter as in most others is in accordance with sound common sense.”

Being a lawyer probably coloured Lord Buckmaster’s judgment because he said in dissent:

“In my view, therefore, the authorities are against the appellant’s contention, and apart from authority it is difficult to see how any common law proposition can be formulated to support her claim.

“The principle contended for must be this: that the manufacturer or indeed the repairer of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed. All rights in contract must be excluded from consideration of this principle, for such rights undoubtedly exist in successive steps from the original manufacturer down to the ultimate purchaser, embraced in the general rule that an article is warranted as reasonably fit for the purpose for which it is sold. Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce. This conception is simply to misapply to tort doctrines applicable to sale and purchase.

“The principle of tort lies completely outside the region where such considerations apply and the duty, if it exists, must extend to every person who, in lawful circumstances, uses the article made. There can be no special duty attaching to the manufacture of food, apart from that implied by contract or imposed by statute. If such a duty exists it seems to me it must cover the construction of every article, and I cannot see any reason why it should not apply to the construction of a house. If one step why not fifty? Yet if a house be, as it sometimes is, negligently built, and in consequence of that negligence the ceiling falls and injures the occupier or anyone else, no action against the builder exists according to the English law, although I believe such a right did exist according to the laws of Babylon…”

Ah, the “genius” of the common law in action. No doubt, Lords Acton, Macmillan and Thankerton would have been regarded as “activist” judges by Ms Albrechtsen’s standards but would anyone now seriously question their wisdom, although it had not previously been expressly “revealed” by their predecessors or contemporaries?

Anyway, would you want to live in a house built by Lord Buckmaster’s builder?