When precedence loses legs

Moses Magadza
Monday, 13 April 2020
When precedence loses legs



When, as sometimes happens in law, precedence loses legal legs to stand on, is inappropriate or even insufficient to deal with a matter at hand, does necessity become the mother of invention and justify a judge making the law? These and other pertinent questions are adroitly dealt with in one of three recent books by Justice Professor Oagile Key Dinganke, PhD, entitled: In Pursuit of Justice – Examining the intersection of Philosophy, Politics and Law


Notion Press of India published the books which are available through Amazon, Flipkart, Amazon kindle, Kobo and Google play. Every country can perhaps cite a judge who was pre-eminent in the development of the law to fit changed societal circumstances. In the United States of America, the Warren Court was considered activist and critics charged that the Chief Justice was engaged in lawmaking. 


In the United Kingdom, Lord Denning was accused of utilising the courts as instruments of lawmaking, especially during his tenure as Master of the Rolls in the Court of Appeal. In Botswana, lawyers still talk of spirited intellectual battles between one Justice Kirby - a reputed conservative legal mind - of the Court of Appeal in that country and Justice Dingake, a reputed liberal mind, who was often regarded by the former as too liberal. 


As one senior Botswana lawyer and former cabinet minister once wrote: if you need to confirm the law as it stands, the ideal judge to appear before is Justice Kirby, but if you wanted to test the boundaries of the law, then you are better off appearing before Justice Dingake. It is not possible in a newspaper review to do justice to this entire book. As a result I discuss my impressions of the book in broad terms, choosing themes that define it. This book is essentially about the workings of a judicial mind. 


It teases out controversial questions around whether judges make law or simply interpret it. It goes further to interrogate the question whether judges’ backgrounds, experiences and values matter in the adjudication process. To ask the question whether judges make law in a constitutional democracy in the context of separation of powers is to court controversy. This is so because this question often divides the legal fraternity, not least the judges. 


Quoting the renowned philosopher Jeremy Bentham, Justice Dingake dismisses the argument that judges do not make law as ‘childish fiction’. Interestingly, he contests the philosophical view of some judges that ‘the law is what judges say it is, and says it is somehow misleading insofar as it may be construed to mean that judges are permitted to be the law unto themselves.


Often regarded as a judicial activist around Africa, Justice Dingake unapologetically comes to the defense of judicial activists. 


He says that judicial activists acknowledge that novel situations may require innovative judicial thinking and the courage to depart from precedent that no longer serves contemporary challenges. He contends that judicial activists acknowledge that reliance on precedent is not always possible, or even desirable. Changes in social or political conditions sometimes require new law, and old principles may simply be entirely inappropriate for circumstances not previously contemplated.


It is Justice Dingake’s considered view as expressed in this book that in a world where the courts are increasingly mandated to police the exercise of public power and keep it within the limits of rationality, reasonableness, fairness and proportionality, a case can and must be made for judicial activism. 


In pedestrian debates and sometimes in legal tussles within the hallowed halls of the judiciary – judicial activism generally has a negative connotation. It is usually understood to mean judges who may have a political agenda, are too liberal and too quick to impose their political views on society. 


On the contrary Justice Dingake argues that the judges who are regarded as judicial activists today are generally progressive judges who have the courage and intellectual gravitas to appreciate constitutional values and the imperative that judges must breathe life into the constitution. He goes to great lengths to point out that judicial activism does not mean judicial adventurism, which is a consequence of plodding through the law without putting forth intellectually persuasive reasoning as a basis for a decision in a particular manner. 


He quotes the eminent US jurist and Judge, Cardozo, and maintains that a judge is not a knight errant, ‘roaming at will in pursuit of his own ideal of beauty or of goodness’. He is to draw his inspiration from consecrated principles. While acknowledging that judges often make determinations with serious political consequences such as in election disputes, Justice Dingake refutes the idea in some legal literature that judges ‘are politicians in robes’. 


He gives as an example of such decisions, electoral disputes in which the courts can make determinations that alter or contradict the choice of the people. In this context he discusses the famous Al Gore v Bush decision of the Supreme Court of the USA and the avalanche of criticism to the effect that President Bush was an imposition of the Supreme Court.


One of the most fascinating aspects of this book relates to a discussion on the intersection of law, politics and philosophy. Justice Dingake argues that the transformation of political questions into legal ones is an inevitable feature of contemporary times. 


This refers to a phenomenon in which the courts are increasingly asked to determine political questions which traditionally had been thought to be the preserve of either the executive or parliament. He calls this phenomenon the ‘judicialization of politics’. He gives an interesting example of a case decided in 2004 in South Korea when the Constitutional Court in that country dismissed the impeachment of the President by the National Assembly. 


He says the case is perhaps the first in the history of modern constitutionalism whereby a president who was impeached by the Legislature was reinstated by the courts.  He also cites the case of Fiji v Prasad in which the Court of Appeal in Fiji restored the 1997 constitution of Fiji when people believed it had fallen into disuse.


Justice Dingake rigorously discusses a number of similar cases in which the courts appeared to ignore traditional boundaries, including being called upon to approve or disapprove the extension of presidential terms of office as it happened with the term of office of Colombia’s now former President Alvaro Uribe, Uganda’s Yoweri Museveni and Russia’s now former President Boris Yeltsin.


He ends his book by observing that the phenomenon of judicialization of politics and the politicization of law are contemporary realities that are bound to cause tension between the courts and the executive, but cautions that the executive must know that the duty to pronounce on the meaning of the law and or the constitution is the business of the courts.


I highly recommend this book to parliamentarians, members of the executive and the judiciary. This is because the book shows how philosophy, law and politics may collide and collude to yield a particular judicial determination, especially in value-laden disputes such as those dealing with electoral disputes, same sex marriage and the rights of the vulnerable and marginalized groups including key populations. Students of philosophy and politics would likely also find the book very interesting. The book, like Judges by the same author which I have had the pleasure and honour to read and review, is written in simple language. 


-*Winner of the SADC Media Award (2008) and 10 other journalistic awards, Moses Magadza is a PhD student with research interests in framing, agenda-setting, priming and critical discourse analysis.





Last modified on Monday, 13 April 2020 13:41

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