Judicial Activism Research Articles

The role of the judiciary: Interpreting vs creating law – or how Hans Kelsen justified “judicial activism”

Hans Kelsen was not only a legal theorist but also worked as a constitutional judge in the First Austrian Republic between 1919 and 1930. Faced with increasing political criticism due to its “activism”, Kelsen radicalized his theory of law-application. He emphasized that judicial work generates law (i.e., it is genuinely political) and that a judge can also create new law outside the framework of possible norm meanings. In this way, he was able to refute political calls for the “depoliticization” of constitutional jurisdiction. In the paper, I present why the Austrian Constitutional Court was accused of “activism” and how Kelsen responded to it. The sociological question of how the judiciary exercises political power and how this power is perceived by politics is addressed in the paper with a focus on legal history, specifically regarding the Austrian Constitutional Court during the interwar period. Hans Kelsen no fue sólo un teórico del derecho, sino que también trabajó como juez constitucional en la Primera República Austriaca entre 1919 y 1930. Ante las crecientes críticas políticas por su “activismo”, Kelsen radicalizó su teoría de la aplicación del Derecho. Subrayó que la labor judicial genera derecho (es decir, es genuinamente política) y que un juez también puede crear nuevo derecho fuera del marco de los posibles significados de las normas. De este modo, pudo refutar los llamamientos políticos a la “despolitización” de la jurisdicción constitucional. En el artículo, expongo por qué se acusó al Tribunal Constitucional austriaco de “activismo” y cómo respondió Kelsen a ello. La cuestión sociológica de cómo el poder judicial ejerce el poder político y cómo este poder es percibido por la política se aborda en el trabajo con atención a la historia jurídica, concretamente en relación con el Tribunal Constitucional austriaco durante el período de entreguerras.

Управление судебной нагрузкой как необходимая мера в организации деятельности судов

In this article, the author analyze the problems of managing the judicial load, rationing the judicial load. System of labor standards, as well as in other types of professional activities, is used in the judicial system to optimize and increase the productivity of the workflow. At the same time, it is correct to talk about the whole range of work carried out by the judge, and not just about procedural actions. Labor rationing should include a complete analysis of labor activity, based on an adequate assessment of the employee's contribution to the court's activities, the costs of the entire range of efforts. The author propose primary mechanisms and ways to reduce the judicial burden.

Exploring the Impact of Judicial Activism on Legal Precedent: A Comparative Analysis

Judicial activism, a concept characterized by judges making decisions that extend beyond strictly interpreting the law, has been a subject of debate and scrutiny within legal scholarship and practice. This paper seeks to explore the impact of judicial activism on legal precedent through a comparative analysis of various judicial systems. By examining case studies and empirical data from different jurisdictions, including common law and civil law systems, this study aims to assess how judicial activism influences the development and stability of legal precedent. Furthermore, the paper investigates the potential consequences of judicial activism on legal certainty, the rule of law, and the balance of power among branches of government. Through this comparative analysis, insights will be gained into the complexities surrounding judicial activism and its implications for the evolution of legal systems globally.

Judicial Activism vs. Judicial Restraint: Balancing the Role of the Courts in a Democratic Society

the contrasting approaches of judicial activism and judicial restraint and their implicationsfor the role of courts in a democratic society. It explores the tensions between these approaches and thechallenges of striking a balance between judicial intervention and deference to other branches ofgovernment. Judicial activism refers to a proactive approach by courts in interpreting laws and theConstitution, often involving the expansion of individual rights and the correction of perceivedinjustices. This approach empowers courts to address social and political issues, but it also raisesconcerns about judicial overreach and the usurpation of legislative or executive authority. In contrast,judicial restraint emphasizes a more deferential approach by courts, limiting their intervention inpolitical and policy matters and deferring to the elected branches of government. While this approachrespects democratic processes and separation of powers, it can also lead to the perpetuation of systemicinjustices and the neglect of marginalized groups.

Analysis of Judicial Activism in an Overall Expansion of Judicial Review, Due Process of Law and Rule of Law in India

The inception of Judicial Review, Due Process of Law and most importantly the wider Principle of Rule of Law is one of the greatest legal weapon to curb the civil and social menaces of our society and also simultaneously plays a pivotal role in developing the sound structure of the country’s democracy by preventing the gross form of arbitrary actions and illegal biasness done by the administrative authorities which ruins the basic objective of the Preamble that focuses on promoting equality, justice, and social welfare of the individuals. The below mentioned points are some of the conclusive evidences cum assertions which mentions about the important presence of Judicial Review under Article 13 of the Indian Constitution and the fair adjudication of justice through the good ends of Indian Judiciary whose major function is to protect and become the real custodian of the fundamental rights of the citizens and along with it to promote the due concept of Due Process of Law and Rule of Law. Undoubtedly, there seems to be the due importance of Judicial Review in overall promotion and development of Good Governance of the Indian Democracy. Under this Research Article, the Researcher will tend to do analysis of how the Judicial Activism has flourished the expansion and wide legal facet of Judicial Review, Due Process of Law and Rule of Law in India.

A EXIGÊNCIA DE REQUERIMENTO ADMINISTRATIVO PRÉVIO JUNTO AO INSS PARA FINS DE CARACTERIZAÇÃO DO INTERESSE DE AGIR A LUZ DA JURISPRUDÊNCIA

This article aims to briefly discuss the requirement by Brazilian Courts of prior administrative request with the INSS for the purpose of characterizing the requirement of standing in judicial actions seeking the granting of social security benefits. To achieve this goal, research was conducted on the jurisprudence of the Supreme Federal Court, the Superior Court of Justice, and the Regional Federal Courts.

Correlação entre teorias constitucionais e métodos de interpretação: a eutanásia como estudo de caso na Colômbia

Introduction: The text addresses the relationship between constitutional theories and methods of interpretation, using euthanasia in non-terminal illnesses in Colombia as a case study. Objective: Determine the relationship between constitutional theories and interpretation methods in the context of euthanasia, highlighting the change in Colombian jurisprudence in 2020. Reflection: The application of interpretation methods by the Constitutional Court in specific cases, such as Martha Liria, is evident. Sepúlveda and Víctor Julio Escobar, based on the analysis made in this regard from constitutional theories, such as the original, customary law, judicial activism and approaches of authors such as Dworkin, Alexy, Habermas and Nino. Which results in generating an impact on the fundamental guidelines and principles for constitutional interpretation, as well as different types of interpretation, such as authentic, doctrinal and judicial. Conclusion: The importance of having interpretation methods to guarantee rights in modernStates is highlighted, highlighting the complexity and dynamism of the constitutional interpretation process, making it pertinent to establish a more deep-rooted connection between constitutional theories and interpretation techniques in the context of euthanasiain Colombia, analyzing specific cases and providing data on its practice in the country.

Implikasi Keputusan Tata Usaha Negara Persetujuan Peningkatan Produksi Kontrak Karya dalam Penegakan Keadilan pada Peradilan Tata Usaha Negara

Environmental pollution occurs when the cycle of matter in the living environment changes so that the balance in terms of structure and function is disturbed. Imbalances in the structure and function of the material cycle occur due to natural processes or also due to human actions. In this modern age, there are many human activities or actions to fulfill biological needs and technological needs, thus causing a lot of environmental pollution. If there is a problem regarding environmental destruction or damage to the environment, it is almost certain that human activity is the main cause. The research method used is the Normative Juridical research type, in accordance with the objectives the author wants to achieve, the methodology in designing the thesis research uses two types of approaches, namely the Statutory Approach and the Conceptual Approach. The Statute Approach is an approach carried out by examining all laws with the concept of law. The implications of the state administration's decision to approve increased production of work contracts, provisions containing the principle of absolute responsibility, cannot yet be implemented, considering that Article 21 of Law No. 23 of 1997 concerning Environmental Management with implementing regulations that have not been made has resulted in lawsuits in environmental cases. in courts requesting the application of the principle of absolute responsibility is often not accepted. Enforcement of environmental law through civil procedures is regulated in Chapter either based on an agreement between the parties or using the services of a mediator and/or arbitrator. A lawsuit via litigation (court action) can only be pursued if efforts to resolve the dispute outside of court are unsuccessful.

Implikasi Keputusan Tata Usaha Negara Persetujuan Peningkatan Produksi Kontrak Karya dalam Penegakan Keadilan pada Peradilan Tata Usaha Negara

Environmental pollution occurs when the cycle of matter in the living environment changes so that the balance in terms of structure and function is disturbed. Imbalances in the structure and function of the material cycle occur due to natural processes or also due to human actions. In this modern age, there are many human activities or actions to fulfill biological needs and technological needs, thus causing a lot of environmental pollution. If there is a problem regarding environmental destruction or damage to the environment, it is almost certain that human activity is the main cause.The research method used is the Normative Juridical research type, in accordance with the objectives the author wants to achieve, the methodology in designing the thesis research uses two types of approaches, namely the Statutory Approach and the Conceptual Approach. The Statute Approach is an approach carried out by examining all laws with the concept of law. The implications of the state administration's decision to approve increased production of work contracts, provisions containing the principle of absolute responsibility, cannot yet be implemented, considering that Article 21 of Law No. 23 of 1997 concerning Environmental Management with implementing regulations that have not been made has resulted in lawsuits in environmental cases. in courts requesting the application of the principle of absolute responsibility is often not accepted.Enforcement of environmental law through civil procedures is regulated in Chapter either based on an agreement between the parties or using the services of a mediator and/or arbitrator. A lawsuit via litigation (court action) can only be pursued if efforts to resolve the dispute outside of court are unsuccessful.

Aspectos polêmicos da tutela de urgência cautelar concedida nos termos do art. 20-b, §1º da Lei nº 11.101/2005

The Law 14.112/2020 brought significant changes to the Law on Judicial Reorganization and Bankruptcy, expressly allowing the use of conciliation or mediation prior to judicial recovery proceedings as pre-insolvency mechanisms to encourage debt negotiation between companies in early stages of distress and their creditors, aiming to avoid the filing of judicial recovery actions. To ensure a negotiation environment between the parties, it admitted the possibility for the debtor to obtain urgent precautionary measures provided for in Article 305 and following of the Civil Procedure Code, to suspend executions against them proposed for up to 60 days, for attempting composition with their creditors, pursuant to Article 20-B, §1 of the Judicial Reorganization Law. However, the innovation of the law brought numerous other challenges to its interpreter. This article seeks to address the issue created about which creditors may be affected by the precautionary measure, whether the effects of the anticipation of the stay period bind all creditors of the company in crisis or only those invited to participate in the prior negotiation procedure, whether the 60-day period is extendable, and how to ensure that the precautionary measure is not used solely to delay debt payment and/or to harm creditors. The proposal of this article is to understand the objectives, limits, and contours of the pre-trial precautionary measure in judicial recovery processes through a systematic interpretation of the Civil Procedure Code in relation to the Judicial Reorganization Law and Law 13,140/2025.

Особенности нововведений в правоприменительной деятельности горских словесных судов Терской области в 90-е годы XIX века

The article focuses on the unique characteristics of the introduction of innovations in the law en-forcement activities of the Terek region’s mountain verbal courts in the 90s of the XIX century. The channels and mechanisms for obtaining information by courts on innovations in normative acts and their interpretations from the relevant authorities on the results of law-making activities in the field of judicial proceedings for consideration in their activities are characterized. For this purpose, copies of normative acts of the highest imperial authorities, rules and instructions on conducting individual investigative and judicial actions, orders of the Terek district authorities, copies of reviews from the head of the Terek region and the prosecutor of the Vladikavkaz District Court, etc. were considered. A list of areas in which the SCS received information about their ju-risdiction in the late nineteenth century is proposed. The procedure for internally discussing and putting legislative innovations into practice is considered. It is concluded that all of this allowed them to effectively interact with law-making organizations and apply current changes in regula-tions to their activities.

Instruments of Judicial Control: Judicial Review & Judicial Activism and Need for Judicial Restraint in India

The active role of the Indian judiciary, particularly of Supreme Court and High Courts has been widely appreciated both within as well as outside India. The independence ensured through the constitutional provisions in favour of the judiciary and subsequently strengthened by the judicial interpretation has definitely contributed to the present status of independent, powerful and impartial status of the Indian judiciary

The Mercosur Socio-Labour Declaration and the importance of judicial activism

Given the fragmentary and uneven development of Mercosur, the adoption of the Mercosur Socio-Labour Declaration has been a bold attempt to protect workers’ fundamental rights within a regional trade bloc. It was first adopted in 1998 and then substantially revisited in 2015. This article explores how Mercosur bodies and, particularly, national judges and their activism have circumvented the current intergovernmental institutional framework to consider the Socio-Labour Declaration as a justiciable instrument. This has allowed workers and citizens to rely upon it to challenge domestic legislations and protect their fundamental rights in the workplace. This piece concludes that an already overdue revision should not only reform the legal nature of the Socio-Labour, which should become a protocol to the Treaty of Asuncion, but should also regulate two crucial areas that are already shaping the Mercosur Member States’ labour markets, namely: platform work, and climate change with a particular focus on green jobs and just transition policies.

Constitutionalizing Mass Surveillance in the EU: Civil Society Demands, Judicial Activism, and Legislative Inertia

Abstract Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it has been possible to observe a gradual constitutionalization of these practices. This Article maps the ongoing process of progressively defining the constitutional limits and societal affordances of mass surveillance in the EU by focusing on the three main actors who contribute to it. First, this Article presents civil society as the propeller of this trend. Civil society not only advocated for a ban on general surveillance systems in the aftermath of the Snowden revelations, but also promoted a series of strategic litigations to challenge state surveillance practices at national and EU levels. Second, it analyses CJEU case law as the main constitutionalizing engine of this process. The Court pragmatically ascertained that an absolute prohibition of mass surveillance did not appear to be a realistic solution and put significant effort into actively defining the legal boundaries of these practices by striving to find an equilibrium between Member State interests and citizens’ fundamental rights. Third, it considers the approaches taken by national legislators to be a slowing factor. States are still reluctant to incorporate the constitutional standards progressively developed by courts despite the now significant body of judicially created parameters in the field.

Topical issues of early termination of powers of deputies of representative bodies of municipalities for non-compliance with anti-corruption legislation

The early termination of the powers of deputies of representative bodies of municipalities as a measure of anti-corruption security has a high preventive potential. However, law enforcement practice indicates that deputies of representative bodies of municipalities abuse their rights, which is expressed, in particular, in avoiding the application of a measure of early termination of powers in relation to deputies who violated anti-corruption legislation. The current situation is largely determined by the consolidation in legislation of the exclusive competence of the representative body of the municipality to make a decision on the early termination of the powers of a deputy. There are often cases when, if there are grounds for early termination of the powers of a deputy due to a clear violation of the provisions of anti-corruption legislation, a representative body applies a less severe measure of responsibility or does not apply any measures at all. During the research, the author used the general scientific method of dialectical cognition, as well as private scientific methods: system-structural, formal-logical (deduction, induction), etc. According to the results of the study, the author came to the conclusion that one of the ways to solve the current situation is the legislative consolidation of the early termination of powers of a deputy of a representative body of a municipal formation in court. The Judicial Board for Administrative Cases of the Supreme Court of the Russian Federation in one of its rulings pointed to the possibility of early termination of the deputy's powers in court. At the same time, the question remains open about the need for a subsequent decision on the early termination of the powers of a deputy by a representative body, by virtue of the exclusive competence assigned to it by law, if the powers of a deputy were terminated prematurely by a court. The legislative consolidation of the measure in question in court will resolve existing issues about "judicial activism" and increase the effectiveness of its application.

THE ROLE OF JUDICIAL ACTIVISM IN SHAPING CONSTITUTIONAL LAW OF INDIA

Judicial activism has an active and transformational role in shaping Indias constitutional law. Researcher discusses the essential features of this effect, highlighting the judiciarys proactive application and interpretation of the Constitution in light of changing societal requirements. Judicial activism in India has broadened the scope of fundamental rights, supported public interest litigation (PIL), tackled environmental issues, promoted social justice and protected human rights. The court has served as an important check on the jurisdiction of other arms of government, establishing a balance of power and upholding constitutional ideals. While judicial activism has played an important role in changing the Constitution to modern concerns, it has also been criticized for possible abuse. This paper captures the diverse influence of judicial activism, demonstrating its significance as a driving force in transforming Indias constitutional landscape. Doctrinal study or secondary data will be used in this paper. KEY WORD: - Judicial Activism, Judicial Restraint, Constitution, Transparence, Judiciary

Значение стандартов ООН в области миграции в дальнейшем совершенствовании судебного рассмотрения дел о правонарушениях в миграционной сфере

In the scientific and research article, the author considers and analyzes the importance of United Nations Migration Standards in further improving the judicial consideration of migration offenses. In accordance with the Constitution of the Russian Federation, the protection of human and civil rights, well-being and freedoms, recognition, ensuring and observance of these rights and freedoms is the responsibility of the state. Taking into account the UN Migration Standards, judges, when verifying the identity of the migrant, identifying the circumstances that contributed to the commission of the offense, must perform these judicial actions on the basis of the Criminal Procedure Law in a reasonable, fair and humane manner. In the case of detention of a migrant or a member of his family before trial, the judge, in accordance with the UN Migration Standards, should discuss whether there are grounds for informing consular or diplomatic institutions of the migrant's State of origin about the judicial review of the criminal case, as well as the appointment of the person as interpreter and summoning the interpret. The author makes proposals for amendments and additions to the Criminal Procedure Code of the Russian Federation to improve the judicial consideration of criminal cases of migration offenses.

Ferrajoli's legal guaranteeism and the judicialization of politics and social interests in ADO 26

This article analyzes ADO 26 in conjunction with Ferrajoli's legal guarantee and the concept of judicialization of politics and social interests. The central hypothesis that guides the research is that this decision respected the guaranteeing parameters, consisted of judicialization of the policy and not judicial activism. The methodology was carried out from a case study in a pure, qualitative, inductive and exploratory way. Finally, it was inferred that the rights of this population would remain violated due to legislative omission, if the STF had not adopted the position of criminalizing homophobia and transphobia.

Differentiation of the Competence of the Prosecutor's Office and the Court to Ensure the Legality of Operational Investigative Activities

The relevance of the study is determined by the role and place of the legal institution for the protection of human, civil rights, and freedoms as an attribute of the rule of law, the need for proper control and supervisionof their compliance. The Constitution of the Russian Federation proclaims that a person, his rights and freedoms are the highest value, and the state is obliged to recognize, respect and protect the rights and freedoms of man and citizen, judicial protection is guaranteed to everyone. This implies, on the one hand, that everyone is guaranteed to ensure the implementation of the active right to appeal in court decisions, actions or inactions of public authorities and their officials, and on the other hand, verification of compliance with the passive right, which is mainly implemented through control and supervisory procedures. At the same time, in the process of implementing certain functions of the state (in particular, law enforcement), authorized bodies are allowed to apply measures that significantly limit the fundamental constitutional rights and freedoms of a person. An important place among these types of state activities is occupied by operational investigative activities (OIA). In the field of OIA, citizens are often limited in their ability to independently defend their rights and legitimate interests, and therefore a special role in this area is given to the court and the prosecutor’s office. As part of the study, an attempt was made to comprehensively study the theoretical, legal and practical issues of organizing the activities of the prosecutor and the court to protect human and civil rights, the legitimate interests of legal entities in the production of operational investigations, analyze the relationship between prosecutorial and judicial activities, and develop an organic mechanism for their implementation, excluding «mutual substitution» and duplication of competencies.

Judiciary: The Protector of the Tribal Rights

Since its emergence after independence, the judiciary has played the role of protector of the Constitution. The framers of the Constitution have also made provision for the judiciary to discharge this role through various writs under Articles 32 and 226. To protect, promote and preserve the rights of the tribal communities various provisions are enacted in the Indian Constitution. The development of tools like Public Interest Litigation (PIL) by the judiciary in the late 70s has significantly contributed to the protection of public interests. In protecting the constitutional and fundamental rights of the helpless, deprived and displaced tribals, the judiciary has interpreted the constitution's right to equality under Article 14-18, right to liberty and livelihood under Article 19, right to life under Article 21, right to religious freedom under Article 25-28 etc. according to the times and circumstances. Through judicial activism and public interest litigation, the judiciary has provided justice to all the underprivileged, exploited, victims and poor of the country who did not have access to the courts. According to the 2011 census, there are about 8% tribal communities in the country. This community is not only uneducated but also an economically weaker section of the society. Most importantly, this tribal community is also the most affected by liberalisation and developmental works. Governments not only displace this community to exploit natural resources but in many cases neglect to allocate compensation. There are many cases where even after decades, the work of rehabilitation and resettlement has not been completed. In such cases, it is only due to the intervention of the judiciary that the deprived and displaced people can get justice. In many cases, after the decision of the judiciary, the development projects have been stopped and the rehabilitation works of the displaced people have been completed. Due to the socio-economic, cultural and political marginalisation of the tribal communities, the Judiciary has adopted a positive approach towards these people while delivering the judgement according to the provisions made in the constitution. In this research paper, I will look into the cases related to the tribals with non-tribals, civil society organisations, the state which are called in the context while dealing with the tensions and conflicts by the judiciary in its judgements in the tribal areas.