The Legal Analysis Of Judicial Activism

Judicial activism has three courses of meaning:sense of judicial review, sense of pragmatism, and sense of mixed judicial activism. The law pragmatism which directly objects to judicial formalism and extreme rationalism represents a positive and motile thought of law betterment, which comports with judicial activism essentially. The Judicial activism in the sense of pragmatism in practice mainly behaves to acknowledge the external social objective of judicial activity, lager free judgment for judge and emphasize the responsiveness of judicature.The emergence of judicial activism just is the result of the deepening of the Rule of Law on the level of Philosophy of Law. Traditional rule of law require judge render a judgment On the basis of the existing jus and law, must not be affected by other factors, which is not necessary in new ideal of judicature and can't be performed in practice. Post-modern rule of law alter the formation law ideology, which reinterprets the process of Judge making legal judgments and formatting legal decisions. Judicial activism on the level of philosophy of right is established in solving the dilemma of formal law and logical-inference from the angle of technology and method. Judicial activism, in social practice, reflects the trend of the integration of judicial power and politics, and result from the change tendency of social attitudes and nation-state paradigms transformation.The validity of judicial activism is relative, and the key lies in the degree of certainty. Drawing a line for discretion and Judge-made law, which are the main manifestations and run of judicial activism is the main means of controlling the "degree" of judicial activism. But they are two difficult questions to answer. The key of issue in the discretion is to regard the objectivity of discretion results as fundamental constraint. And procedural justice is the final line of defense. We should draw a quite artificial to judicial activism. To some degree, judicial activism is the needed for social and the product of development of rule of law and Society. So it is consistent with general law of Legal development that judicial activism is used as the direction of judicial reform. However, judicial activism is indeed a theory of dangerous and we do not have enough conditions to put into practice.