Judicial Philosophy, Activism and Restraint
Judicial philosophy is defined as the way a prosecutor or judge interprets and understands the law. The laws that are followed around the world are considered to be universal but some have reservations when it comes to certain cases under unique circumstances. In scenarios like this, the judge would investigate and determine the real meaning of the written law and find out the real intent of why it is written.
There are two main types of philosophy which is essential in decision making – the judicial activism and judicial constraint (The American Prospect n.p). Judicial activism is very much in contrast with judicial restraint. The former is based on the judgment theory that considers the spirit and changes that happens over time with the law. On the other hand, the latter is mostly based on the importance of strictly following the legal precedent and law interpretation.
Moreover, to elucidate the true nature of judicial activism, it is a process dynamically inclined with the outlook of an ever changing society. The term judicial activism was first used by Arthur Schlesinger Jr. in a published magazine, Fortune, entitled Supreme Court: 1947 during January 1947. Also, judicial activism is defined as the philosophy which stimulates and encourages the judge to deviate from the norms and to think outside the box by looking for the policies in a different perspective for social cases as well as the progressive ones (Navelkar 9). Under judicial activism, the rulings of the judiciary are also suspected of being more based on the considerations of political instances and personal matters when it should be more on already existing laws. There are also questions raised when it comes to the credibility of the judicial activism especially when talking about the constitutional interpretation, power separation, and the statutory construction. There are cases wherein a judge goes beyond his or her jurisdiction when deciding for cases presented in courts. Moreover, according to the written constitution, judgment should be carefully exercised when interpreting the law. However, there are situations wherein inclusion of own wills results to deviating from the legal process by bending the law. Judges, when judicial activism is followed, should exercise their utmost power in correcting and eradicating the injustices especially those which are happening in the government.
On the other hand, judicial restraint is the theory under judicial philosophy and the interpretation of this concept is more inclined in pursuing limiting the bias or personal will of the judge when exercising his or her power under the law. A judge, according to judicial restraint, should be able to have hesitations when striking down some laws, otherwise, if these laws are unconstitutional, hesitations should not be adopted. Furthermore, judges who follow the judicial restraint are more inclined with the principle of stare-decisis and uphold the existing precedents from the past judges they followed. Judicial restraint can be considered as a practical approach or procedural when judges exercise their reviews. The main principle of the restraint enables the judges to reprimand when it comes to constitutional and legal issues and decides what is really due. For the substantive approach, judicial restraint is encouraging the judge to look after the questions regarding the constitution and eventually grant the elected branches the substantial deference followed by the invalidation of the corresponding actions. This is, however, only possible when violations of the constitutional limits are proven. With the introduction and application of the judicial restraint, the court should therefore focus on interpreting the law rather than compromising the making of policies. Also, this guides the judges to base their decisions on the intent of those who have written the law, the precedents or the decisions of past judges and, lastly, the trust of not intervening with policy making.
The Different Advantages and Disadvantages of Judicial Activism and Judicial Restraint over one Another
The main difference of these two philosophies is that judicial activism is commonly known as loose constructionist while judicial restraint is more known as the strict constructionist. A judge who interprets the law base on being a strict constructionist is literally relying on the intent of the writer of the law and not being open minded enough to see every angle of it. A judge who is more of loose constructionists is prone to being too broad and even taking into account those scenarios and considerations which had already happened decades ago. Clearly, judicial activism is the opposite approach of judicial restraint (Navelkar 15).
The following passages are the major differences of the two philosophies:
(a) judicial restraint requires the court to bring all the acts of state legislatures as well as that of the congress – if not, there are violations posed to the state or country; usually, with judicial restraint, a court would likely defer to the constitutional interpretations made by any constitutional body like the congress;
(b) judicial restraint has a wide limiting power when it comes to turning down and striking out a law while judicial activism is more of advocating and encouraging the conditions and values which are greatly contemporary;
(c) the difference between the goals of judicial restraint and judicial activism is that judicial restraint has the vision and mission to preserve the balance among legislative, judiciary, and executive branch of the government. Through this, the judge is motivated to still review the published laws and not modify them right away;
(d) judicial activism promotes the right use of power to eradicate any injustices so that when the constitutional groups are not effective, the fairness will still be maintained. Moreover, judicial activism strengthens the social policies regarding civil rights, political fairness, public morality, and that of the rights of an individual; and
(e) lastly, the judges who use the judicial restraint is more of looking at the intent and context of the written law so as to make a sound and unbiased decision while in judicial activism, the judges are required to look after and deviate from the normal scenario, thus, going beyond what is the primary intention of writing the law; all the possibilities should be well considered.
Conclusion
Based on the constitution of every nation around the world, the judiciary body has to be actively participative in ensuring that every law passed and written will be properly interpreted so as to minimize the mistakes. Judicial philosophy has an essential role in decision making when it comes to who the judges will be in different cases passed onto courts. It has two main types: the judicial restraint and judicial activism which are very opposite in nature. Judicial restraint is the interpretation of constitution which limits the judge’s power in turning down the laws, requiring the court to uphold all the state legislatures’ acts and that of the congress. On the other hand, judicial activism gives the judge the right and utmost power to overrule some specific judgements and acts as well as it is more inclined in the formulation of social policies which concerns the issues of almost all of its range such as public morality, individual’s rights, political injustices and civil rights. Lastly, the types of philosophies should be greatly considered so as to have a well-balanced number of judges to maintain fairness and credibility. This includes the fact that there would be a balanced political perspective.
Works Cited
Navelkar, Jyoti Ramakant. “Judicial Restraint And Judicial Activism” Web. http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-LT-2-Jyoti.pdf
The American Prospect. ‘Judicial Philosophy” Web. 2014. http://prospect.org/social-tags/judicial-philosophy
