Motives in Support of Judicial Activism: Critique and Ethics of Restrained Adjudication as an Alternative
Baltic Journal of Law & Politics, Vol. 2, No. 1, pp. 112-134, 2009
23 Pages Posted: 3 Mar 2010
Date Written: September 4, 2009
The paper concentrates, from the critical perspective, on two general ideological themes used to support and welcome judicial activism mainly in the jurisprudence of the highest level courts of the United States and Lithuania. This task is relevant in light of the judicial activism spreading in court practices, as well as its clear embrace in the academic community of Lithuania.
The first theme focuses on the practice and ideology of Justice John Marshall. It is rather evident that the Marshallian ideas and activities form an ideological basis for an active and politically powerful constitutional court. However, due regard should be paid to the critique of the Marshallian heritage.
The other theme is built on the juxtaposition of reality and the law as text, the former being much more complicated. This allegedly supports the theses either that adjudication could not avoid taking the form of precedent (the creation of law rather than the interpretation of law), or that judicial interpretation is meant to fill the gaps or fix inconsistencies in the legal text (the so-called thesis of interpretative sufficiency). However, due regard should be paid to the consequences of the realization of both theses to the political framework of the state.
This article attempts to fill in these aforementioned gaps in critical attention with compensatory critique, as well as to suggest an alternative approach to the propaganda of judicial activism - an ethics of restrained adjudication.
Keywords: Judicial Activism, Legal Interpretation, Justice John Marshall, Political Framework of the State, Restrained Adjudication
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