On Judicial Activism Philosophy Of America

Judicial activism and judicial passivism change into each other and thedecline of one means the growth of the other, which, to some extent, adoptsto the changing of judicial review. Including several features, judicialactivism is a dynamic philosophy, which is based on judicial review,with thetransformation from traditional to modern judicial review. It went throughconservative and liberal periods. The practice subject of this judicialphilosophy is the U.S.federal court judges, who overturned precedents,expanded the explanation of the Constitution, even made law in cases. Thejudicial targets are to protect citizens'rights and to achieve physical justice.During the judicial activism period, and represented by Lochner Case,the judicial philosophy stood for the freedom of contract and believed in theidea of legal formalism in legal field, personal freedom spirit influenced byprotestant ethic and the Limited Government theory in political field, and italso pursued laissez-faire and social Darwinism, opposed to governmentintervention in the economy. Then extreme conservative and rigid judicialphilosophy was formed so that it hindered the development of socialeconomy, and it declined in Franklin Roosevelt's New Deal period. In the1950s and1960s, Brown v. Board of Education Case opened the liberaljudicial activism which represented by the Warren Court.The Second WorldWar provided the opportunity for civil rights movement.Influenced by legalrealism and the new liberalism, the consciousness of civil rights and equalityescalated. At the same time, a lot ofcivil rights movements outbroke and theCivil Rights Acts were enacted which made the democracy characteristics of judicial activism, that is to say, federal courts intervened political problemspositively and claimed rights for social vulnerable groups, ensuring thepersuit of equal justice. These characteristics made Warren Court thereputation of People's Court. During the later Rehnquist Court, for the reasonof many social problems caused by liberal spirit, judges changed andconservatives came upon the stage, judicial activism gradually movedtowards the conservative.Both typical periods of conservative and liberal are accompanied withcontroversy and were questioned. But it cannot be denied the legitimacy andrationality.It effectively eliminates conservative property in precedent system,overcomes the drawbacks of Originalism and will sever for the purpose ofresponsive law under the new period.After sorted out and analyzed the typical stages and obvious traits ofAmerican judicial activism, the essay took the comparison perspective andgave close attention to the propose and features of Judicial Activism in China.Then,the essay indicated that there were differences in four aspects, whichwere practice subject, practice premise, manifestation and Value Pursue.Based on this, China's judicial activism should learn from American judicialphilosophy and improve itself. By means of converting law researchparadigm, restraining government's administrative power and grasping thelimitation of judicial activism to promote vitality and constancy of China'sjudicial activism.