Analysis Of Judicial Activism In America

The article aims to have a general understanding on judicial activism through researching Judicial Activism in America systematically, clearly different from the active judicial with Chinese characteristics, replying reference value to China’s judicial reform. The article sketches the contour of judicial activism mainly from four aspects of the definition, origin, development and future. The most prominent feature is using the comparative method and case analysis, along the line from theory to practice and since ancient times to comb a relatively clear understanding of judicial activism. Especially the article uses a large number of detailed references of the cases in American judicial history, making the discusses more evidence-based.The article is divided into Introduction and four chapters and the main ideas are as follows: Introduction briefly introduces the background, significance and the difference with Chinese active judicial of judicial activism as a branch of law philosophy. These problems are value of theory and practical significance. It has aroused the attention of scholars and judicial practice. The first chapter introduces the concept of judicial activism and its features. So far, judicial activism do not have a definite concept. This article lists several representative definitions of American and Chinese scholars. The definition of judicial activism is nothing more than the pursuit of fairness and justice and the judges need to find a balance between adherence and the subjective initiative. The characteristic of judicial activism is mainly from the angle of the constitution of the United States, because the development and growth of a theory must be closely related to the soil nourishing it. The second chapter describes the actual sources of judicial activism-1803Marbury v. Madison and then explains the theoretical source of judicial activism from three aspects. The Legal pragmatism advocats the law should focus on solving practical problems. The discretion seeks a theoretical basis for a judge to take the initiative. The substantive justice provides support for the legitimate judicial activism from the ultimate goal of rule of law. In addition, this chapter introduces the development source of judicial activism from the view of relationship between judicial activism and judicial review. The production and expansion of judicial review make from an empty theory into specific judicial practice and judicial activism plays an increasingly important guiding significance. The third chapter firstly divides Federal Supreme Court into four periods based on the strength of the role of judicial activism and cites representative case of each period to support the classification. Then the article introduces the shift in the development of relations between judicial activism and judicial restraint. As the opposite of judicial activism, judicial restraint in American legal history also plays an important role. The chapter IV briefly discusses the development direction of judicial activism, learnt from and absorbed in China. The judicial activism may have defects of damage to democracy and expansion of permissions, so we need to seek a more moderate judicial activism to maximize service to the judicial process and be best to avoid conflicts and controversies caused by judicial activism, which judicial activism is diligently pursuing.