Judicial Philosophies
Various philosophical approaches are used by judges to interpret law. They include liberal, conservative and moderate judicial philosophies.
Judges that embrace a liberal judicial philosophy are of the view that the Constitution is a living document hence it is open to various angles of interpretation. Consequently, the philosophy tends to be inclined more towards jurisprudence that supports progressive ideas such as women’s rights, personal freedoms and the separation of state and religion.
On the other hand, a conservative judicial philosophy opines that the Constitution is a fixed document and as such it has no room for interpretation. It should be followed in its letter and spirit. As a result, judges tend to maintain the traditional status quo of the existing laws.
A judge that is neither inclined to the liberal nor the conservative judicial philosophies is said to be adhere to a moderate judicial philosophy. They do not commit to a fixed line of judicial thought but rather make decisions based on the specific details of the case at hand.
Judicial Interpretation Theories
While interpreting existing laws, judges are encouraged to observe restraint. The theory of judicial restraint requires judges to be aware of the limit of their powers when making judgements. As a result, it encourages judges to be hesitant in overturning laws perceived as bad unless they are evidently unconstitutional.
Judicial activism, on the other hand, requires judges to make judgements in considering of personal or political factors instead of interpreting the law in a rigid manner (Boundless).
While there is no unanimity on which of the judicial interpretation theories is better, judicial restraint is more effective in the administration of justice. Judges that practice judicial activism lend their judgments to emotional and political considerations which may not always be in favor of justice (Boundless). By human nature, emotions and political stands are bias hence such rulings will not attain the principal of neutrality a judge ought to have. Furthermore, judicial activism is akin to making new laws which border on usurping the powers of the legislative branch of government.
Work Cited
Boundless. “Judicial Activism and Restraint.” Boundless Political Science. Boundless, 10 Sep.
2015. Retrieved 08 Apr. 2016 from https://www.boundless.com/politicalscience/textbooks/boundless-political-science-textbook/the-judiciary-14/judicial-review-and-policy-making-93/judicial-activism-and-restraint-508-909/
