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.