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What is Judicial Activism?

Judicial Activism

Judicial activism is an approach used to exercise judicial review of court decisions involving issues of constitutionality and validity of executive actions or legislative acts. The term judicial activism was coined by Arthur Bancroft Schlesinger, a Pulitzer Prize-winning author of the “Age of Jackson” and famous history professor in Harvard University.

Under the principles of judicial activism, judges are expected to play a role as independent policy makers, apart from merely being interpreters of the law. Hence, it diverts from the doctrine of separation of powers. While it is true that judges only apply the law, newly carved jurisprudence form part of the law of the land, making judges some sort of lawmakers. The concept is the opposite of judicial restraint, wherein judges are encouraged to limit their functions.

Judicial activism is used in rhetoric and academic research. From the purview of academic, judicial review means the power of the judge to overturn a previous ruling and replace it with a new jurisprudence. It also speaks of its capacity to render an act of the executive or legislative branch as unconstitutional or invalid. When used in rhetorical view, judicial activism means that a judge decides based on his policy preference rather the true meaning of the law. In this case, the judge abandons his duty as a magistrate and assumes the role as a bench legislative. When the bench is seated by an activist judge, the court is more likely to render a decision that is solely based on their own understanding of the constitution rather than the view of other judges from the lower courts.

Judicial activism can affect the outcome or resolution of a case in many ways. For many years now, judicial activism has been a subject of numerous political debates. Defenders of judicial activism say it is the legitimate form of judicial review but detractors claim that it is a usurpation of powers.

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Posted by on Oct 14th, 2014 and filed under Humanities, Legal. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.