Legitimacy of the means.

Byline: Shahrukh Mehboob

The means of realising the judicial role must be legitimate; the principle of the rule of law applies first and foremost to the judges themselves, who do not share the legislature's freedom in freely creating new tools. The bricks with which we build our structures are limited. Our power to realise our role depends on our ability to design new structures with the same old bricks or to create new bricks. Sometimes there is great similarity between the new structures we build with the old we have known in the past. We tend to say that there is nothing new under the sun and that the legal pendulum swings to and fro before returning to its point of origin. But these analogies are inappropriate. The structures are always new. There is no return to the point of origin; the movement is always forward. Law is in constant motion; the question is merely one of rate of progress, its direction, and the forces propelling it. Moreover, sometimes we succeed in creating new 'tools'. The genius of law is evident. But such inventions are few. Usually, we return to the old tools and use them to resolve new situations.

This theory determines the jurisprudential key concepts. It is a spring from which law draws its power, and it fashions the common legal experience. When the legal text especially a constitution or a statute includes such phrases as 'void,' 'authority,' 'legal action,' 'intention,' 'limitation of action,' 'good faith,' 'reasonableness,' these words reflect a legal culture and legal tradition. They are not empty vessels into which the judge can simply pour any and all content.

Instead, they reflect fundamental legal approaches, derived from the legal tradition to which the legal system and culture belong. All of these give these expressions their conventional jurisprudential meaning in that system. Indeed, when a constitution or a statute employs these terms, it does so against the backdrop of the basic approaches of that society's legal culture and operative legal theory. When judges fulfil their role in society, they act within the context of those self-same conceptions. Justice Frankfurter asserted: An enactment is an organism in its environment. And the environment is not merely the immediate political or social context in which it is to be placed, but the whole traditional system of law and law enforcement. An important tool that judges use to fulfil their role in a democracy is determining justiciability. That is...