On Judicial Activism

This paper will study the judicial activism systematically, based on which active judicature is also discussed. Comparative analysis, case study and normal positive research are used in this paper. The innovative points in this paper are:(1) systematical analyze on judicial activism; (2)summing up the philosophical, constitutional and reality foundations of judicial activism; (3) research on the relationship between judicial activism and active judicature; (4)framework of legal methods for judicial activism.Introduction shows the origin and academic reflection of judicial activism. Judicial activism is frequently discussed in theory and practice, which is a important approach of modern judicature with judicial refrain to lead to the transformation of judicial theory and even legal theory. It has been discussed in judicial theory in recent years in China Therefore, it is of great academic and practical value to study judicial activism both in Anglo-American Legal System and Civil Legal System, based on which we can improve the use of judicial activism in China.In the first chapter, I will inquire the concept and recognition of judicial activism in order to explain the meaning of judicial activism. There are many definition of judicial activism, among which I explain my definition based on value of interpretation, role in politics, border of power and constitutional interpretation. Judicial activism exists on the edge of law.When judicial power overlaps with legislation and administration, and judicial power influent the game of power and politics in judicial case without respecting or coordinating with other power, judicial activism happens. What's more, I've compared judicial activism with some other terms, such as judicial liberalism, judicial refrain, strength of judicial review, discretionary power, judicial legislation, judicial minimum. As a judicial idea, judicial activism has some characteristics:(1)judicial activism is based on consequences; (2)judicial activism focuses on constitution and natural law; (3) judicial activism means the judicial power invade administrational power somehow; (4)judicial activism has some social influence; (5)judicial activism can reduce the obstacles of legal procedure.Chapter Two deals with the classification of judicial activism. There are several problems on the classification of judicial activism. Based on some analyze, we can divide judicial activism into some types:technical judicial activism, social judicial activism and juristic judicial activism. Technical judicial activism is the most frequently seen, which means Justices declare some legislation or administration action is unconstitutional, or is not bound to precedents. Social judicial activism means that in the purpose of social justice, the court can not judge cases only on the context of law.When the court find that the nonfeasance of legislation or administration have threatened civil rights, the court should based on constitution replace legislation or administration in cases. Juristic judicial activism means that the court should analyze the property of created rights to form new conception. Different from technical judicial activism or social judicial activism, the juristic judicial activism do not concentrate on the purpose or how these new conception are used, but on the development of legal study.I have discussed the foundation of judicial activism in Chapter Three. Judicial activism has deep philosophical, constitutional and real foundations. The philosophical foundation focuses on the original meanings, which means to find the intent of makers of constitution and law. There are different originalism, old and new. New originalism stresses on the royalty to the constitution, not just following majority, and it scarcely cares about the intent of single maker of constitution, but the public meanings of context. Under the doctrine of 'proper means everything', new originalism may demand that judges should follow judicial activism. After Hans-George Gadamer, hermeneutic stresses on reader and interpreter, which has challenged originalism. The foundation of judicial refrain is democracy, which focuses on the rights of majority and consider the intent of legislator as the goal of legal interpretation. In the process of criticizing democracy, the constitutional foundation of judicial activism——republicanism has been found. republicanism consider the judges as the leader of power system of constitution, as the protector of civil rights and justice, as independent political power. Republicanism has the dream of defending justice in order to protect rights in legal interpretation, even violate the intent of legislators or public. The reality foundation of judicial activism are:the existence of discretion, expansion of administration power, the transformation of law from autonomy to reaction. There are several advantages of judicial activism, such as justice in single case, supplement of legislation, balancing the law and society, accumulated legislation and so on. But based on the philosophical and constitutional foundation, disadvantages also exist, such as the limited ability of court and judges, violation of democracy and rule of law. As the development of research, different opinions have emerged on the advantage and disadvantages of judicial activism, which demand the judges follow judicial activism more carefully than ever before.This will lead us to Chapter Four.Judicial activism is so complicated that abstract methods or conclusions are easy to attack, so judges of judicial activism will be confronted with many complex problems. In theory, operating theory related with judicial activism can be found as to some argumentation on judicial review. Becker believe it's legal obligation for judicial power to control legislation, and it's judges' obligation to protect long term interest of the society; John Hart Ely think democracy can malfunction sometimes, when procedure can not work with representation of minority, judicial interference is proper. Cass R.Sunstein think judicial power and democracy are complementary to each other, and the court should respect legislation, when democratic politics involves 10 values mentioned above, judicial power should interfere and make 'wide and deep'decision. Legal methods are academic and technical, which the judicial activism needs. Judicial activism replace public' opinion with judges', and the decision will influent the game of power, which need to be fully augmented where the legal methods play an important role. Concentrating on original intent, judicial activism use all kinds of legal methods, and legal methods have also evolved. With empirical research and case study, I have discussed the use of legal methods in judicial activism in the US. In traditional judicial activism, constitutional interpretation was considered as the reveal of context of constitution which was fixed and unchangeable. Correspondingly, legal methods is mainly composed of context interpretation, plain-meaning interpretation and assistance of legislative history. In 20th century, originalism of context is margined, and interpretation is composed of interpreter's coordination among context, history and development, none of which is dominate in legal interpretation. In the meanwhile, practical reasons such as ethics, custom, religious ideology, psychology and sociology are used in legal system. Confronted with difficulty in practice, judges is very deliberate on judicial activism or refrain. The US supreme court have summed up the experience of judicial activism, such as four rules, the 5:4 rule, certiorari and boundary between judicial activism and judicial refrain. In the same time, when holding judicial activism, the US Supreme court has to follow some limited rules to ensure the proper use of judicial activism. Judicial activism is not fully researched in China, but active judicature has emerged, which is similar to judicial activism and is composed of ideology, emotivism, folklorismus, sectionalism and single case. Our active judicature do not have the academic foundation and practical institution as in the US, and there is only some formal similarities. Judging from the necessary conditions, such as independence of judicature, separation of the three powers, judicial review and quality of judges, there is no condition for judicial activism in China.As the development and complex problems in China, judicature is considered more and more important. we should mainly hold the judicial refrain, in the meanwhile, judicial activism is an important issue.