A call for candour: Accepting the necessity of judicial activism in statutory interpretation

Abstract

Nowadays it is commonly accepted that some degree of judicial law making is necessary. However, judicial activism is controversial. In his article “Judicial Activism – Justice or Treason?” Tom Campbell outlines strict parameters for judicial activists, judges who do not apply existing law to reach a decision but instead applies his or her own views as to what the law ought to be. Building on Campbell’s article, this paper investigates judicial activism in the context of judicial gap filling of accident compensaton legislation. This paper argues that judicial activism should be accepted as a necessary and significant part of statutory interpretation. Statutory gaps are inevitable. In order to fill such gaps a judge must both make law and be activist. Judges should be allowed to make law and be activist to the extent that it is necessary to fill statutory gaps. Although judicial law making and judicial activism is not ideal, filling the statutory gap is preferable to the alternative of leaving the case undecided. We ought to be candid about this reality of judicial law making.