On Judicial Activism
|Keywords||Judicial Activism Legal Methods Active Judiciary Judicial restraint Judicial philosophy|
This article aims to systematically study the phenomenon of judicial activism, and on the basis of this study, to take care of our active judicial phenomenon. The article is the comparison method, case study methods and norms empirical method. The basic innovation of judicial activism classification system, a preliminary summary of the philosophical basis of judicial activism, constitutional basis, social infrastructure, judicial activism and activism judicial relationship research framework of the legal method of judicial activism. Introduction, the text of two parts, the body of the four chapters. The main content and perspectives are as follows: The introductory section describes the origins of judicial activism and academic reflection. Judicial activism is an important topic of theoretical and practical topics, together with judicial restraint, to constitute judicial Two important way forward in modern times, has also led to important changes and steering judicial theory even legal theory. In recent years, the issue has also attracted the attention of scholars in China, and the attention of the judicial practice. Therefore, further judicial activism in the different manifestations of the common law and civil law systems research, and on this basis of judicial activism Looking role in our judicial practice may be, has both theoretical significance, but also practical value. Chapter by to sort out the concept and understanding of the existing judicial activism, meaning clearance judicial activism. The definition of judicial activism is quite a lot of analysis and critical analysis from four explain the value orientation, political role to play, the boundaries of the exercise of powers, constitutional interpretation to come to a comprehensive concept of judicial activism. Judicial activism occurred in the fringes of the law, when the overlapping jurisdictions with legislative and executive powers, if the jurisdiction does not respect other departments, be resolved in accordance with the terms of reference by other departments, or there is no co-ordination with other departments, communication conclusion proceed with the hearing in accordance with conclusions, but through the case had an impact on the game of power and political landscape around the social development of judicial activism. To further clear the meaning of the words of liberal judicial activism and judicial, judicial restraint, judicial review of strength, discretion, judicial legislation, minimum judicial doctrine theory and practice often used interchangeably for comparison to clarify the difference for the classification and the use of judicial activism in later laid the basis of the argument. As a judicial philosophy, judicial activism is a results-oriented, focusing on the consideration of the Constitution and natural law, the \the characteristics of the obstacle. The second chapter examines judicial activism classification. Classification of judicial activism is rare and there are various issues to analyze power operation of the division of judicial activism: the technical judicial activism, social justice activism and law judicial activism methods, and empirical methods, historical comparison, case studies further elucidated. The technical judicial activism as the most important manifestation of judicial activism judges take advantage of the power of judicial review, understand and interpret the Constitution narrowly or broadly, announced a legislative or executive branches of the practice is unconstitutional, or enjoy from the previous judgment constraints even deviate from the judgment of similar cases. Social justice activism to achieve social justice for the purpose of not only the formalism of the law requires the judiciary as a trial basis, the legislative and executive authority is negligent in the discharge of their duties and not as serious impact on the protection of civil rights, the Court the basis of the Constitution, in the judgment given Mediating Dispute initiative to act as the legislative and executive branches of the terms of reference, policy and social purposes. Law justice activism refers to the formation of the judicial power, in the exercise of the process for the creation of appropriate rights analysis, and Law new concept. Unlike technical judicial activism and social performance dynamic 'subjective intent in the exercise of judicial power, jurisprudence justice activism not asked the purpose of their service, and do not care about these new concepts whom is knowledge of law, in theory, the objectivity of exploration, analysis and creativity. The third chapter discusses the basis of judicial activism. Judicial activism has deep philosophical foundation, foundation and practical basis of the constitutional concept. The philosophical basis from the original intent of exploring, the traditional legal hermeneutics think should search for the author's intention is to explore the intent of the framers and legislators reflected in the judicial field. Originalism is divided into the old original intent and neo-originalism, the new originalism primary qualities is loyalty to the Constitution, rather than comply with the democratic majority, paid little attention to the specific intent of the drafters of the single constitutional text, more attention public meaning of the text. \The paradigm shift to Gadamer flag to the reader, interpreter, and an emphasis on understanding and interpretation of reality, as the domain of philosophical hermeneutics challenged and questioned the intent of the theoretical. The constitutional concept of judicial restraint is based on democracy, and stressed that the protection of the rights of the majority, legislators intent to seek a legal interpretation of the target. In critical Democratic process, to the birth of the basis of the constitutional concept of judicial activism, republicanism. Republicanism judges as the leader of the constitutional system of power, as a protector of the rights of the people and the patron saint of justice, the judiciary as an independent political force. Republicanism with the pursuit of justice and to defend the rights of the ideal, the interpretation of the law is aimed to protect the rights contrary to the legislators intent and contrary to public opinion, even in the interpretation of the law at all. Realistic basis of judicial activism, the existence of the discretion, the expansion of executive power, legislative and administrative impossible in a timely manner all the issues into the law, the nature of the legal system to respond to law changes from Autonomy Law. Judicial activism has maximum cases justice to fill a lack of legislation, equitable legal and social development, the advantages of the accumulation of legislative experience, but because of its philosophical foundation and constitutional foundation insurmountable disadvantage, led to the judicial activism of the advantages and disadvantages of in one. The drawback is mainly reflected in the limited ability of the courts and judges may deviate from the democratic mechanisms and possible departure from the principle of the rule of law. With the further development of the theory, scholars of the advantages and limitations of judicial activism itself the gradual emergence of objections, which requires more cautious in the use of judicial activism process, which leads to the fourth chapter. The fourth chapter focuses on the use of judicial activism. Use of judicial activism is an extremely complex issue, any abstract methods and conclusions are inevitably attracted criticism, because the judge pursued considered when judicial activism is tedious but changeable. From the theoretical level, the theory of operation and judicial activism can indirectly see some discussion by the Constitutional Review Becker advocated judicial control legislation is a legal responsibility to safeguard the long-term fundamental value is the responsibility of the judge; Erie democratic failure when, when the presence of the representatives of the program does not seem to fully suited to represent the interests of minorities, at least in some cases, judicial intervention is appropriate; Sunstein justice and democracy is a complementary relationship, the court should respect for the legislature, when he pointed out that 10 of the core values ??of democratic political decision involving the administration of justice that should be involved and can make a \Legal methods, both theoretical issues, but also the technical issues, judicial activism requires a unique set of skills, thinking and methods can be achieved. The importance of judicial activism instead of the national will of the judge's personal will of the judgment result of direct or indirect impact on the power game, the inevitable requirement of the reasons for judgment fully legal method is self-evident. Judicial Activism in the search for original intent was to center the integrated use of various methods, there are changes on the legal methods in the process of the original intent of pursuing. In this paper, the United States, for example, through a combination of empirical and case to explore the use of legal judicial activism. Traditional period of judicial activism, the interpretation of the Constitution is considered to be fixed written constitution, reveal and use of the same meaning, accordingly, the legal method is mainly reflected in the literal interpretation of the plain meaning interpretation, legislative history supporting role. The beginning of the 20th century, the text originalism marginalized explained explained by text, history and development of the coordination of the three different perspectives, any single perspective is not with an absolute position on the interpretation of the law is not limited to a method At the same time, such as ethics, cultural practices, religion, ideology, psychology, sociology, pragmatism reason began as a class role in the legal system. Judicial activism in the analysis of problems in practice, judges on judicial activism and judicial restraint is particularly careful trade-offs, the U.S. Supreme Court concluded in practice the use of the experience of a set of judicial activism, including four rules, the United States Supreme Court 5 the 4 rules certiorari concept boundaries correspond to the practice of judicial restraint and judicial activism. At the same time, the United States Supreme Court have to follow some basic rules of self-restraint to ensure that judicial activism, the use of the correct use of the process of adjudicating cases of judicial activism. Theorists of judicial activism in China is far from adequate, our practice has a dynamic shape judicial activism judicial phenomenon, this phenomenon include the ideological dynamic Emotivism activism, folk doctrine The dynamic place to experience the dynamic, reflecting the active cases. Nevertheless, the active justice of our country do not have a rigorous theoretical foundation of judicial activism and institutionalized the practice, only in the form of some similarities between the differences are indeed not be the truth meter, which from judicial activism requires an independent judiciary, separation of powers, judicial review, the quality of judges, and all can be seen. Therefore, our country does not have national conditions and strict conditions of judicial activism judicial. With the rapid development of the Chinese society and conflicts increasingly complex, the judiciary is becoming more and more attention. In the current context of the rule of law, although it should adhere to judicial restraint as the core, but a rainy day, active justice issues, and further to be concerned about judicial activism, by no means redundant.