Justice Ivan Rand was perhaps the greatest exponent of the rule of law in the history of the Supreme Court of Canada. He was a great judge. He scorned as impractical the admonition that judges should “apply the law, not make it”. His judgements frequently broke new ground, but it should be understood that in “making the law” great judges like Ivan Rand respond to fundamental considerations of order and fairness and not to personal whim. It is sometimes necessary for judges to return to first principles to provide legislators with a framework within which to operate in unforeseen situations. The word “activism” is usually used by critics to imply that a judge is pushing the envelope beyond the proper boundaries of the law, but properly understood the term may equally indicate a judicial tightening of the boundaries to deny the bench a power seemingly conferred by the Constitution or legislation. Restraint, as much as expansion, is governed by the judges’ recognition of the limits of their institutional competence and their appreciation of their role in the constitutional scheme.
In the absence of statutory authority the courts have not yet addressed issues related to globalization and human rights with the sort of boldness and creativity we associate with great judges like Ivan Rand. Order and fairness have acquired a global dimension. Globalization offers a different kind of challenge, but is no less demanding of the rule of law. In the case of creating some form or forum of relief for Third World victims of globalization, we seem to have used restraint as an excuse for inertia. Judges need to be practical, but their greatness will rest on their capacity to see not only what the law is but what it should become. There is a time for boldness and a time for restraint and judges should be judged on their ability to tell the difference.
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