Law is a set of behavioural norms that are set in place by a ruling class to adjust the behaviour of humans when attempting to develop society to a certain stage. This can ultimately be discussed as the essence of law. These behavioural norms can be found in the majority of societies in today’s modern age, and is a huge influence on how the majority of people go about their daily lives.
Although these particular sets of behavioural norms are written to benefit the ruled society, it can be debated who may be the best party to effect, change or implement these laws, and can be argued between the courts or professional politicians who may be fitter to make radical legal changes or decisions. Legislation has always been a controversial topic when it comes to whether it has been implemented correctly and effectively or not.
It can be found in many communities where a crime has occurred, that the ruled society (the people) disagree with the punishment and/or ruling the court has decided upon the accused. Many views are the courts are not regulated enough and the judicial role-players have been unable to sustain their integrity and honour, ultimately taking in their own opinion to decide upon a ruling against the accused. Heydon expressed that ‘The expression “judicial activism” is here used to mean using judicial power for a purpose other than that for which it was granted’ .
This explores the point that the courts are only meant to use their powers to implement punishments/judgements only for the benefit of the popular will, and not for their own interpretation of the law. In order for legislation and typical behavioural norm rules to be effective, the courts and the rulers of the court must stay impartial to their own opinions and make judgements on behalf of the community values, rather than their own.
Unfortunately the current general trend of the courts is found to be the opposite of their purpose, rendering them useless to effectively make radical legal change. It has been found that politicians may be from different areas and different social classes. These politicians use their background social classes and values to generate sufficient support in order to create radical legal change of legislation, to benefit the popular will of the social class they are representing.
They use the benefits of the promoted behavioural norms to create the effective legislation idea. When compared to the values and experience of the courts, politicians usually have a lifetime’s worth of representing the targeted social class’s popular will, which allows them to be better suited to make radical legal change as these politicians rely on the support of the social class to assume their political power and position.
This kind of will for change has been evident recently in Queensland over the ‘Bikie War’ they are currently experiencing. As McMurdo discusses, the community have been begging the government for a while to see to the issue with the Bikie Gangs, in which the courts have failed to set any form of legislation to address this. Local politicians, who are residents themselves and have been putting up with the Gangs in their own residential areas, have finally stood up and put pressure on the government to make radical legal changes .
The courts, as a professional justice system, do deal with the majority of legal issues so they do know the better legal necessaries of the legal changes purely based on social equality and justice, however, as Heydon depicts, the politicians who have had a lifetime of experiences of assessing the popular will are most definitely fitter to make radical legal change from a theoretical consideration .
As the public opinion in todays modern world becomes more and more valuable and widely expressed, the law-making process needs to represent the spirit of these opinions and display more social equity and justice that satisfies the popular will, but at the same time still needs to embrace democracy. This is done through creating what can be called the “legislative elite”, or a legislative party, which contains politicians who are representing the popular will, and using their mass support to represent the public opinion in law-making decisions.
Being familiar with the rules of law concept and having the necessary knowledge and skills, the legislative elite can effectively make the rational and fair decisions and analysis based on the popular will. This is reinforces Heydon’s statement that Radical Legal Change is best effected by professional politicians , as those professional politicians are part of the legislative elite. The majority of the included politicians are professional scholars who stand for a neutral political mind and tend to defend the public opinion in the process of making law.
Through analytically studying the significance of Heydon’s statement, it has been discussed that although the courts may have the practical experience of dealing with lawful matters based on justice and social equality rather than public opinion/popular will, professional politicians are found to be a better fit to radically change legislation due to their personal experiences and values of the popular will through seeing to what the community values, gaining mass support and collaborating with like-minded professionals in what as been discussed as the legislative elite.