A mcnugget of wisdom from McHugh

"My own social views are probably as radical as anyone in this room - maybe more so."

Michael McHugh, one of the longest serving judges on Australia's High Court, has frustrated to no end by proferring his progressive credentials at the cusp of achieving irrelevancy. Apparently all it takes to be a radical is to be disempowered. For all his mighty rhetoric, having now retired, all one is left capable of asking is why he did not practice what he now preaches. McHugh argues that he was hamstrung by the law, and a strong adherence to what is typically known as 'black letter law', at least with regards to constitutional law. Black letter law is the legal philosophy of following the most literal, internally consistent interpretation of legislation and, to a lesser extent, the precedents set by previous court decisions. The problem with black letter law is that it looks more logical on paper. I've worked on several native title claims, for example, where the boundaries of the land in question, and to which those opposing the claim purport to correspond, are inaccurately recorded. Yet our very 'black letter' assessment of the claim rarely ventured into the realms of the simple question, 'is that really what the situation is on the ground?' Of course, in this situation, black letter law interpretations favoured those who opposed native title claims.

And the same may be said about interpreting constitutional law in a 'black letter law' fashion. More often than not it becomes an excuse to reach interpretations that favour governments, who after all derive their legal powers from constitutions, and big business, which have the capacity to influence government.

Why is it called judicial activism to favour more benevolent interpretations of the law which enable the empowerment of a greater number of the population? What is so radical about that?