Judicial Activism Of United States

“Judicial activism”,as a judicial philosophy in the United States,does not have a very specific and clear definition of concept,and it has distinctive characteristics such as flexibility and result orientation,so that every judicial decision can maximize the real justice,the present justice and the predictable justice in the future.Because of this,in the judicial practice we can easily distinguish it.American judicial activism is not groundless,it has not only a profound theoretical basis,but also in the judicial practice there are many outstanding contributions,such as: The 1964 New York Times,the case of defamation of government officials,1937 Roy abortion case and “Watergate” and so on.The advocates of judicial activism are mainly to realize their judicial values by means of judicial review and judge-making law.and judicial activism is often put together to discuss the doctrine of judicial restraint,it means that the judge,on the basis of the original idea of the legislator,advocates the enactment and precedent and,in the process of interpretation,ensures respect for the legislature and the administrative organs as much as possible,and minimizes the use of the judge to inject his own political pursuits and preferences into it,and use all kinds of ways to restrict judge's discretion as far as possible.Advocates of judicial restraint argue that judges adhering to judicial restraint should be subject to legislative and administrative decrees approved by the elected State organs and to be in a passive position in the course of dealing with the practice.But the judicial activism pointed out that if the single adherence to “judicial restraint” may drown case justice,the true rule of Law Society,the realization of universal justice is not the ultimate goal,the realization of case justice,so that every citizen feel that justice and justice is the ultimate demand of the rule of Law Society.Debate on judicial activism and judicial restraint no pause,but in these controversies,more and more people realize that “judicial activism” as a judicial philosophy,its existence is reasonable,because not all cases can be resolved according to the existing law,even if it can be resolved according to existing laws,In exceptional circumstances,the present fairness and justice cannot be realized.Admittedly,in most cases,the law acts well in the pursuit of universal justice,but when confronted with difficult cases,we need a judicial philosophy similar to “judicial activism”,because by virtue of this judicial philosophy we can achieve what Aristotle calls “justice which is superior tojustice”.After analyzing and demonstrating the American judicial philosophy,we can not help thinking of the “active judicature” which is proposed by our country,this article thinks that there is a difference between the two,the “active judicature” in our country prefers a kind of policy,but lacks a kind of judicial “intension”.Our country's “active judicature” whether in the background,the basic connotation and the core value,there are essential differences between the manifestation and the function of practice and the “judicial activism” in the United States,but from the perspective of “judicial activism” as the dimension of judicial philosophy,American “ Judicial activism” is still worth studying and studying.In recent years,despite the continuous development and improvement of our country's legal construction,but there is a distance from our “rule by law” goal,in the road of rule of law construction,we need to pay attention to the theory promotion behind the system,need a judicial philosophy that can support our country rule of law construction,need a kind of legal thinking way to think and solve the problem.To take this opportunity,this article provides one kind of thought namely the practice rationality,the practice rationality is takes “the good” as the behavior right or not the highest measure standard,it requests us to follow the inner good guidance in the judicial practice,uses the practical wisdom to solve the real life judicial problem.While perfecting the judicial system,we should focus on the theoretical construction behind the system,the judicial theory of our country lacks a judicial philosophy,and lacks the deep theory support.A school,a theory,or a viewpoint can be developed and expanded only with deep and deep theoretical support.It is the “judicial activism” of the United States!...