Judicial Activism, Judicial Independence and Judicial Hubris: The Case of International Courts

Abstract

Judicial activism is cause for concern in many democratic countries. In a narrow sense, judicial activism can mean judicial nullification of democratically enacted laws; more broadly, it implies the making or imposition of public policy by judicial decree. There are times when judicial activism may be warranted; there are also times when it is an abuse of judicial power. Judicial activism has implications for the ideal of judicial independence, both because such independence is necessary if courts are to intervene properly in behalf of justice and the rule of law, and because judicial overreach can actually threaten judicial independence, or may transmute it into indefensible judicial irresponsibility. Admirable instances of judicial activism by the mid-20th century American courts against racial discrimination seem to have inspired a far less justified trend toward judicial activism on many other issues by courts in the USA and elsewhere. There is cause for concern that international legal institutions, in particular, are contributing to the growth of a dubious kind of judicial activism. If judges around the world are encouraged—by academic opinion, by the Zeitgeist among political elites, by international lawyers and pressure groups—to overstep their authority, and especially if an activist judiciary is seen to be a partisan force in the great political and cultural disputes of the era, then democratic public opinion is liable, sooner or later, to ensure that there will be less judicial independence, not more.