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

"Le remède au gouvernement des juges: Le judicial self-restraint?" in S. Brondel, N. Foulquier, L. Heuschling (dir), Gouvernement des juges et démocratie, Paris, Presses universitaires de la Sorbonne, 2001, p. 63-113

35 Pages Posted: 11 Sep 2006  

Laurent Pech

Middlesex University - School of Law

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.

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

Suggested Citation

Pech, Laurent, Government by Judiciary and Judicial Self-Restraint in France and in the US. Available at SSRN: https://ssrn.com/abstract=929107

Laurent Pech (Contact Author)

Middlesex University - School of Law ( email )

The Burroughs
London, NW4 4BT
United Kingdom

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