Comments on: The Threat of Judicial Activism http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/ Bill Muehlenberg's commentary on issues of the day... Sat, 11 Feb 2012 02:03:44 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Bill Muehlenberg http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-253561 Bill Muehlenberg Thu, 22 Sep 2011 03:37:45 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-253561 Thanks Hollie But perhaps you need to read the article again. Offering personal opinion (just as you have done in your comment) is not at all identical to judicial activism. They are worlds apart. Judicial activism, as I said, involves judges effectively creating laws and pushing personal agendas instead of merely applying already existing law. That is not how democracies function, and it leads to the death of the rule of law, and to the tyranny of the judiciary over the legislative and executive branches of government. And of course one need not be a Christian to be pro-life or pro-family. And please tell us what your particular bias is. Bill Muehlenberg, CultureWatch Thanks Hollie

But perhaps you need to read the article again. Offering personal opinion (just as you have done in your comment) is not at all identical to judicial activism. They are worlds apart. Judicial activism, as I said, involves judges effectively creating laws and pushing personal agendas instead of merely applying already existing law. That is not how democracies function, and it leads to the death of the rule of law, and to the tyranny of the judiciary over the legislative and executive branches of government.

And of course one need not be a Christian to be pro-life or pro-family. And please tell us what your particular bias is.

Bill Muehlenberg, CultureWatch

]]> By: hollie http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-253468 hollie Tue, 20 Sep 2011 12:58:31 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-253468 Your personal views penetrate this article, isnt this what activism is? I would not quote this article it seems to be christian bias (anti 'choice,' anti gay) etc. Hollie Broekman Your personal views penetrate this article, isnt this what activism is? I would not quote this article it seems to be christian bias (anti ‘choice,’ anti gay) etc.
Hollie Broekman

]]> By: Dr John Studley http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-205854 Dr John Studley Fri, 03 Sep 2010 15:31:48 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-205854 Hi Bill I have been doing some research into Judicial recusal and Judicial activism and I came across your site. I am in the middle of writing to Rt Hon Ken Clarke MP who is Lord Chancellor and Minister for Justice arguing that our Judiciary requires more democratic accountability and their beliefs should be included in the guidelines for recusal. I have some support from Lord Carey. Dr John Studley PhD MA OND CGeog FRGS Hi Bill
I have been doing some research into Judicial recusal and Judicial activism and I came across your site.

I am in the middle of writing to Rt Hon Ken Clarke MP who is Lord Chancellor and Minister for Justice arguing that our Judiciary requires more democratic accountability and their beliefs should be included in the guidelines for recusal. I have some support from Lord Carey.

Dr John Studley
PhD MA OND CGeog FRGS

]]> By: Damien http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108878 Damien Tue, 04 Nov 2008 07:39:36 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108878 Ewan and John That is great stuff on the native title issue. Thanks for the education! Damien Spillane Ewan and John

That is great stuff on the native title issue.

Thanks for the education!

Damien Spillane

]]> By: Gerard Flood http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108639 Gerard Flood Mon, 03 Nov 2008 05:42:54 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108639 Dear Bill, Congratulations for a very important piece! Great leadership! Especially praiseworthy is your addressing corrective actions. Also required is that defenders of democracy must, at parliamentary elections, make an issue of the Parties' policies and performances in judicial appointments. Until we like-minded democrats seek cohesive and cogent electoral effectiveness, we can't progress this issue. It is no comfort that judicial activism in Australia long pre-dates the libertarian assault on the citizenry. Some judges want to rule, instead of honoring their prescribed duty. It's really a power struggle against the sovereignty of the citizens. Well done! Gerard Flood Dear Bill,
Congratulations for a very important piece! Great leadership! Especially praiseworthy is your addressing corrective actions. Also required is that defenders of democracy must, at parliamentary elections, make an issue of the Parties’ policies and performances in judicial appointments. Until we like-minded democrats seek cohesive and cogent electoral effectiveness, we can’t progress this issue. It is no comfort that judicial activism in Australia long pre-dates the libertarian assault on the citizenry. Some judges want to rule, instead of honoring their prescribed duty. It’s really a power struggle against the sovereignty of the citizens. Well done!
Gerard Flood

]]> By: John FG McMahon http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108607 John FG McMahon Mon, 03 Nov 2008 02:51:04 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108607 Ewan, Having lived in North Queensland, Papua New Guinea or the Solomon Islands for many years I am very familiar with both Melanesian and Aboriginal cultures. There is no doubt of the entitlement of the Melanesian Australians to their traditional lands same as we are entitled to freehold ownership of our own properties. Equally adamantly the Aboriginals had no illusions that the Great Spirit of the Land owned them and their individual spirits. It would have been "blasphemous" for any Aboriginal group or individual to claim ownership of any land. Thus the Aboriginal claims of recent times are politically not culturally driven. John FG McMahon, Kolonga, Qld Ewan,

Having lived in North Queensland, Papua New Guinea or the Solomon Islands for many years I am very familiar with both Melanesian and Aboriginal cultures.

There is no doubt of the entitlement of the Melanesian Australians to their traditional lands same as we are entitled to freehold ownership of our own properties.

Equally adamantly the Aboriginals had no illusions that the Great Spirit of the Land owned them and their individual spirits. It would have been “blasphemous” for any Aboriginal group or individual to claim ownership of any land.

Thus the Aboriginal claims of recent times are politically not culturally driven.

John FG McMahon, Kolonga, Qld

]]> By: Natasha Sim http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108605 Natasha Sim Mon, 03 Nov 2008 02:41:31 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108605 Hello John, Sorry for the confusion & thanks for the clarification. Yes, Mabo is factually different from other cases of Aboriginal land title. I was referring to the responses above re: native title in general, sorry for being confusing by mentioning Mabo! My point was that the legal concept of land ownership is always going to be couched in Western terms (eg. working the land, being settled rather than nomadic). It is fallout from the time of Babel that Western law/language is at a loss as to how to deal with Aboriginal connections to the land, and yet to not deal with it would constitute oversight. Ewan, Agreed, but I think it's also important to recognise that the legalism that stems from that idea may also cause serious injustice to disputants. Sometimes strictly interpreting the law will render to the litigant (after a costly and protracted process) an unjust outcome, though it also maintains the integrity of the system of laws. Natasha Sim Hello John,

Sorry for the confusion & thanks for the clarification. Yes, Mabo is factually different from other cases of Aboriginal land title. I was referring to the responses above re: native title in general, sorry for being confusing by mentioning Mabo!

My point was that the legal concept of land ownership is always going to be couched in Western terms (eg. working the land, being settled rather than nomadic). It is fallout from the time of Babel that Western law/language is at a loss as to how to deal with Aboriginal connections to the land, and yet to not deal with it would constitute oversight.

Ewan,

Agreed, but I think it’s also important to recognise that the legalism that stems from that idea may also cause serious injustice to disputants. Sometimes strictly interpreting the law will render to the litigant (after a costly and protracted process) an unjust outcome, though it also maintains the integrity of the system of laws.

Natasha Sim

]]> By: Ewan http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108594 Ewan Mon, 03 Nov 2008 01:55:58 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108594 John FG McMahon is right. I had forgotten that detail. The Mabo case applied specifically to a land claim on one of the Torres Strait Islands where there arguably was a strong claim to prior title. That decision in favour of Eddie Mabo was then unreasonably extended to apply also to the mainland of Australia, which as John points out is a completely different situation. The whole process was judicial activism from start to finish. The result is we now have a form of title (native title) which is racist (only applies to descendants of aboriginal Australians), and which caries pagan religious overtones. It gives tacit state approval to animism through a claimed "spiritual connection with the land". Ewan McDonald. John FG McMahon is right. I had forgotten that detail. The Mabo case applied specifically to a land claim on one of the Torres Strait Islands where there arguably was a strong claim to prior title. That decision in favour of Eddie Mabo was then unreasonably extended to apply also to the mainland of Australia, which as John points out is a completely different situation. The whole process was judicial activism from start to finish. The result is we now have a form of title (native title) which is racist (only applies to descendants of aboriginal Australians), and which caries pagan religious overtones. It gives tacit state approval to animism through a claimed “spiritual connection with the land”.

Ewan McDonald.

]]> By: Ewan http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108563 Ewan Sun, 02 Nov 2008 22:52:44 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108563 Natasha, the point about the judicial activism that led to the creation of native title is that it was properly the role of the legislature not the courts to determine this. Ewan McDonald. Natasha, the point about the judicial activism that led to the creation of native title is that it was properly the role of the legislature not the courts to determine this.

Ewan McDonald.

]]> By: John FG McMahon http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108559 John FG McMahon Sun, 02 Nov 2008 21:27:07 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108559 Natasha, The Mabo case has been hijacked. When one examines the background of Mr Eddie Mabo one learns that he was in fact Melanesian not Aboriginal. The Torres Strait Islands are populated entirely by Melanesians. In their culture they build robust and enduring houses in a community (village) in which they make gardens, build pens for domesticed animals, eg pigs and have a system of land ownership with the title passing from one generation to the next in a time honoured tradition. In some cases, in PNG for example, it is the women who hold the title. The Aboriginal culture is in stark contrast to the Melanesians. The Aboriginals did not own the land; the land OWNED them and quite often family groups of Aboriginals would wander hundreds of miles from their usual haunts depending on availability of food and to attend traditional gatherings such as the Bunya festival held every three years on Bunya Mountain in SE Qld. Mr Mabo was indeed entitled to customary ownership of land; the Aboriginals are not! John FG McMahon, Kolonga, Qld Natasha,

The Mabo case has been hijacked. When one examines the background of Mr Eddie Mabo one learns that he was in fact Melanesian not Aboriginal. The Torres Strait Islands are populated entirely by Melanesians. In their culture they build robust and enduring houses in a community (village) in which they make gardens, build pens for domesticed animals, eg pigs and have a system of land ownership with the title passing from one generation to the next in a time honoured tradition. In some cases, in PNG for example, it is the women who hold the title.

The Aboriginal culture is in stark contrast to the Melanesians. The Aboriginals did not own the land; the land OWNED them and quite often family groups of Aboriginals would wander hundreds of miles from their usual haunts depending on availability of food and to attend traditional gatherings such as the Bunya festival held every three years on Bunya Mountain in SE Qld.

Mr Mabo was indeed entitled to customary ownership of land; the Aboriginals are not!

John FG McMahon, Kolonga, Qld

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