I am currently in Australia, where I dropped in for the weekend (as one does) to attend a conference discussing the phenomenon of judicial activism. The meeting, which brought together lawyers, judges and other interested parties from Australia, the US and Britain, brought out in a particularly fascinating way the deep divisions between lawyers – particularly in the US Supreme Court and the Australian High Court – over judicial activism. In one camp were the judicial activists themselves, who bridled at the very suggestion that they were anything of the kind and then proceeded by everything they said to demonstrate conclusively that they were; and in the other camp were their legal and judicial colleagues who were aghast at the damage the activists were doing to the integrity of the law and the place of the judiciary in western society as the arbiters of dispassionate and objective justice.

The first camp was made up of judges who believed in interpreting the US constitution or Australian statute law so creatively and flexibly that they would literally make things up to ensure that the law fitted their view of the way the world should work; the second camp insisted that the judiciary should stick to the words of the law and the constitution so that the intentions of their framers should be respected, judges should not replace them by their own views and the courts should restrict their activities to delivering the law rather than inventing it. The first camp called the second camp ‘wooden’ and ‘inflexible’; the second camp accused the first of having imposed a hegemony of anti-democratic judicial moralising around the western world from the US Supreme Court, through the English Law Lords and the European Courts of Human Rights and of Justice all the way to the High Court of Australia.

Needless to say, my sympathies were strongly with the second camp. And I was very struck by two things in particular: the posturing humbug of the judicial activists and the principled scorn of their judicial opponents who, despite winning the intellectual argument hands down, are clearly powerless to resist the tide of politicisation which has delivered justice into the hands of ideologues within the very courts on which they sit. One such self-denying activist, having denounced the ‘demonisation’ of the judiciary by their critics and piously called for an end to name-calling, proceeded to say – virtually in these words -- that anyone who criticised the judicial endorsement of ‘lifestyle choice’ was one step away from sending gays to Auschwitz. But of course, that couldn’t be name-calling because he embodied moral high-mindedness and was thus constitutionally incapable of grievous and unwarranted insult.

One after another, these judicial activists invoked the spectre of Nazi Germany to justify their activities, claiming absurdly that if Weimar Germany had had a human rights law the Nazis might never have come to power. They presented themselves sanctimoniously as the lonely defenders of freedom against tyranny and their critics, by implication, as fascist fellow-travellers. This provoked lawyers and judges from the opposite camp to point out that opposing gay marriage was a legitimate point of view and demonising such a view -- to coin a phrase – was an attempt to shut down a very proper and necessary debate. One very senior judge protested at the ‘insanity’ of a situation in which unaccountable judges ruled that gay orgies were a right under the US constitution or the European Convention on Human Rights. As he said, the vague and malleable provisions of human rights law had allowed the judges to pretend that they were laying down Platonic universal values rather than doing the job they were supposed to do, which was to deliver the values embedded in a society and embodied in its laws.

There are many issues which divide us; their resolution should depend on the outcome of public debate through elected parliaments. This does not mean, as the judicial activists so misleadingly claim, that there should be a tyranny of the legislature. The courts should always be the ultimate upholders of the law as a safeguard in a democracy. But to be that safeguard, they have to actually uphold the law rather than invent it. If they do the latter, they turn from democracy's defender into its nemesis.

Judicial activism does not belong to the world of law. It belongs to the world of politics. The elision between the two is both damaging to the law and dangerous to democracy.