Of female surnames and judicial activism: turning personal beliefs into law

THERE is a general understanding in all constitutional democracies that ‘government by the Judiciary’ is undesirable.

- YONELA DIKO

This is because the formulation of legislation that governs societies involves multiple citizen's interests as articulated by their representatives in legislative houses. The judges, on the other hand, have no authority to prescribe citizens policy preferences because they do not have the advantage of deliberating among hundreds of elected officials representing the people.

Aware of these limitations, at all times, judges must refer to existing legislation and policies because the legislation is not developed in a vacuum but in consideration of all existing norms and practices, balancing individualism and communal cultures and responsibilities.

Judges must therefore refuse the temptation to impose their own personal conception of what they think is good for society, turning personal preferences and prejudices into law.