Judicial Activism in the House of Lords: A Composite Constitutionalist Approach

The article considers the debate on judicial activism in the context of British constitutional law, and advances a theory of "composite constitutiuonalism." Accepting the role of the judiciary as an important actor in the public decision-making process, it however argues that in the context of multi-participant ongoing public processes, the court is neither the bearer of the last word nor can it single-handedly reform socially accepted norms. In its approach to this issue, the article elaborates further on Cohn and Kremnitzer's model of judicial activism (18 Canadian Journal of Law and Jurisprudence, 333 (2005)). This model presents a composite view of the role of the judiciary in the public sphere, and argues for active judicial participation that is nevertheless constrained by the constitutional framework. On a socio-legal level, these judiciary's different functions support fifteen parameters, which can be used to assess judicial contribution in its various forms. As a case study, the article analyses the indefinite detention decision (A) of 2004, and defines a more complex picture. In consideration of the surrounding dynamics of the decision, A was well grounded in the social decision-making process, and expresses a lower level of activism in this respect. Finally, the current constitutional framework justifies intervention to protect the rights involved, centered on liberty of the person. These results redefine the decision as a compound expression of activism and restraint, which reflects the composite role of the judiciary. As such, the model belongs to the constitutionalist camp, an emerging public law theory that supports an empowered judiciary and advocates the role of the courts as active participants in an expanded public sphere of decision-making and rule-implementation. The article is also a defense of this theory. It challenges recent criticism of constitutionalism as misrepresentation of the true nature of this theory.