Government by Judiciary and Judicial Self-Restraint in France and in the US

Abstract:     
The argument of this article is that "judicial self-restraint" cannot be considered an appropriate answer to the alleged "government by judiciary" (governement des juges). This latter notion is indeed too theoretically imprecise to help formulate an accurate diagnosis. Furthermore, it remains problematical to exactly determine when constitutional interpretation becomes illegitimate. In particular, the so-called "interpretivist" (or "originalist") approach in resolving constitutional questions is not helpful since numerous theoretical and practical arguments can be raised to demonstrate its political bias. In conclusion, it can be argued that judicial inactivism is merely another form of judicial activism which cannot be said to be more democratically legitimate.

Number of Pages in PDF File: 35

Keywords: Government by Judiciary, Judicial self-restraint, Constitutional Interpretation, France, USA

Accepted Paper Series