Should the judiciary be pro-actively involved in addressing perceived social imbalances and injustices? If so, to what extent should a court be entitled to “punish” without such sanctions first being set out by the legislature in statute?
These are interesting constitutional, jurisprudential and philosophical issues that reflect the conflict not only between common (case) law and statute law but also between the role of the legislature and the courts.
It is an issue that, at least in relation to punitive (exemplary) damages, has found two solutions in two jurisdictions. But that is perhaps a reflection on the social philosophies and systems in the respective countries.
Enjoy your coffee!