The American legal system is founded on the principle of checks and balances, with three co-equal branches of government. The judiciary is the check on the power of the executive and the legislature. Judicial activism and restraint are two approaches that judges can take when interpreting the law. Judicial activism is when judges make decisions based on their own personal beliefs, rather than following the letter of the law. Judicial restraint, on the other hand, is when judges interpret the law narrowly and stick to precedents.
The debate over the role of the judiciary in our society is one that has been around for many years. On one side of the debate are those who believe that the judiciary should be active in promoting the values of our society and in ensuring that our laws are interpreted in a way that is consistent with those values.
On the other side of the debate are those who believe that the judiciary should be more restrained in its role. They believe that it should defer to the elected branches of government when it comes to interpreting and applying the law.
In this article, we will explore the pros and cons of both judicial activism and judicial restraint, and the differences between them. Keep reading!
click here – What Is Active Release Therapy And How Does It Work For Muscle Strains
Judicial restraint and Judicial activism
When it comes to judicial restraint, it is the practice of judges deferring to the elected branches of government when it comes to making policy decisions. The theory behind judicial restraint is that it is the role of the legislature, not the judiciary, to make laws. This is in contrast to the doctrine of judicial activism, which calls for judges to be more proactive in shaping public policy.
Judicial activism is the belief that the judiciary should be more active in shaping public policy, as opposed to simply interpreting the law. Proponents of judicial activism believe that the judiciary is a check on the other branches of government, and argue that it is necessary in order to protect individual rights. Critics of judicial activism argue that it usurps the role of the legislature, and say that it can lead to arbitrary and capricious decision-making.
Pros and cons of Judicial restraint and Judicial activism
There are pros and cons to both approaches. Judicial activism can result in more progressive decisions that reflect the changing times, but it can also lead to judges making decisions based on personal biases. Judicial restraint can provide stability and predictability, but it can also result in outdated decisions that don’t reflect the reality of the world today.
Ultimately, it is up to each individual judge to decide which approach to take. There is no one right answer, and each case must be decided on its own merits.
click here – 4 Academic and Career Tips for Future Counselors
Pros of Judicial Activism include the following:
- Judicial activism can result in more progressive decisions that reflect the changing times.
- It can allow judges to correct wrongs that have been perpetrated by the legislature or executive branch.
- It can provide a check on the other two branches of government.
- It can help to ensure that the law is applied fairly and evenly.
- It can help to protect the rights of minority groups who may otherwise be marginalized.
- It can help to ensure that the law keeps up with the times and evolves as society does.
- It can help to bring about a much-needed change in society.
Cons of Judicial Activism include the following:
- Judicial activism can lead to unfair and unjust results.
- It can be used to advance a political agenda.
- It can be used to bypass the legislative process.
- It can lead to a feeling that the law is being imposed on people, rather than them having a say in it.
- It can lead to judges making decisions based on personal biases.
- It can create instability and unpredictability in the law.
- It can result in judicial overreach.
The pros of judicial restraint include the following:
1) It ensures that the judiciary does not become too powerful and interfere with the proper functioning of the other two branches of government.
2) It allows the legislature and the executive to make policy, without interference from the judiciary.
3) It ensures that the judiciary does not make policy, which is the role of the legislature.
4) It ensures that the judiciary interprets the law, rather than making new law.
5) It allows for a separation of powers between the judiciary and the other two branches of government.
The cons of judicial restraint include the following:
1) It can lead to the judiciary being too passive and not using its power to protect the rights of individuals and to correct wrongs.
2) It can lead to the judiciary being too deferential to the legislature and the executive, and not holding them accountable for their actions.
3) It can lead to the judiciary being reluctant to strike down laws that are unconstitutional, because they were enacted by the legislature.
4) It can lead to the judiciary being reluctant to interpret the law in ways that would protect the rights of individuals and to correct wrongs.
5) It can lead to the judiciary being reluctant to use its power to ensure that the other two branches of government are following the Constitution.
Conclusion
So, which approach is best? Judicial activism or judicial restraint? There is no easy answer to this question. Both approaches have their pros and cons, and it is ultimately up to each individual to decide which approach they believe is best.