Judicial Activism Research Articles

Unpacking Receivables: Gresik Bottled Water Company’s Financial Analysis

This research aims to identify and describe the causes of outstanding receivables and the handling efforts carried out by PT. XYZ, which is a bottled Drinking Water Company in Gresik Regency. The research method used is descriptive with a qualitative approach. The method used in this research process comes from interviews conducted with two selected informants and documentation of data on outstanding receivables for 2020-2022 at PT. XYZ. Data analysis techniques use Miles and Huberman. The findings from this research show that the factors causing outstanding receivables at PT. XYZ has 2 internal factors, namely lack of credit analysis, no special collection team, limited information, and external factors, namely intentional elements, economic conditions and customer environmental conditions. The resolution efforts carried out include monitoring, telephone information, warning letters, direct visits, judicial action, and implementing new policies.

Upholding Judicial Independence through the Practice of Judicial Activism in Constitutional Review: A Study by Constitutional Judges

The practice of judicial activism, though not formally defined within the jurisdiction of the Constitutional Court (MK), is implicitly recognized as an integral element of independent judicial power. The importance of this independence is underscored as a fundamental necessity for the preservation of law and justice. This research utilized a normative juridical methodology, incorporating conceptual, comparative, and case-based analysis. The study findings reveal that judicial activism, as practiced within the Constitutional Court, is underpinned by independent judicial authority. Moreover, this practice aligns with the tenets of progressive legal doctrines, which not only acknowledge the significance of codified legal provisions but also endorse legal innovations for the pursuit of justice. The practice of judicial activism within the Constitutional Court is indispensable for reinforcing the principle of checks and balances. The subjective and abstract nature of judicial activism, however, necessitates objective validation through the principle of virtue jurisprudence.

The "judicialization" of emergency management in Belgium: From a safety regime toward a security one.

This paper analyzes changes in emergency management in Belgium that have accompanied growing security concerns in Western countries since the 9/11 terrorist attacks in the United States. Using an instrumentation approach, we show how the adoption of a particular regulatory instrument helped put police and judicial actors center stage and gave a more prominent place to the inquiry. We show how the instrument is hampering cooperation, communication, and trust in rescue services and may undermine the collective intelligence at the core of emergency responses. We argue that these changes are indicators of the rise of a new "emergency management security regime" that contradicts the original safety regime applied since the 1960s.

The Judiciary’s Theatrical Achilles’ Heel: Acting the Fool (RAF members) compared to Acting in Bad Faith (Alex Jones)

This article compares theatrical courtroom provocations by leftist activists and militants in the 1960s and 1970s with recent ‘bad faith’ actions in court by the American right-wing activist Alex Jones. The article proposes that law’s theatrical way of showing a general audience how the judiciary aims to serve justice is annoyed but not threatened by defendants acting the fool. The reason is that acting the fool provokes a confrontation between two different kinds of theater in court. In this confrontation, the agonistic logic of the court case is still operative, with the law embodying power and the accused acting as its carnivalesque challenger. When the accused acts in bad faith, however, there is a double confrontation, namely inside and outside the court. Those acting in bad faith are what Johan Huizinga defines as spoilsports who pretend to play the game while aiming to destroy it. The article considers how the spoilsport manifests itself in and outside of court through contemporary media and concludes that the theatrical nature of the judiciary needs protection in order to do justice to victims.

"Trust as a Reliance Interest: Administrative Law and Financial Regulation in the United States and its Comparative Implications"

This article argues that regulatory trust is established and maintained through a relationship between stakeholders and the government, with the former group of organizations and individuals relying on their understanding of this relationship. Federal administrative law in the United States makes the expectations about the regulatory environment on which stakeholders rely more meaningful by granting stakeholders the right to bring actions in court when their expectations are being (or seem likely to be) dashed. To make this argument, I begin with the threshold question of how courts serve as a forum for voicing claims of distrust in regulatory regimes. I then consider the importance of political accountability over regulatory decision making, illustrating the concerns about the structure of agencies that regulate consumer and housing finance. Next, I will discuss a second major challenge to trust that arises from the extent to which the authority of regulatory agencies is circumscribed by legislation. Along the way, I draw on the case law presented to argue that problems of trust in financial regulation center on the reliance interests of stakeholders. Finally, the argument suggests a research agenda into trust as a reliance interest that I sketch in the conclusion.

Legal Policy in the Decision of the Constitutional Court and the Formation of Law

Objective: The purpose of this research is to raise the Criminal Law Act as a hotly debated topic. Some people think that the Constitutional Court should have the courage to make a legal breakthrough on this very important issue. However, the Constitutional Court judges are of the opinion that expanding the meaning of adultery is not within their jurisdiction. This research aims to examine further the legal arguments of the Constitutional Court's decision which is an open legal policy and its implications for the formation of laws and regulations in Indonesia. Method: The research method used is literature research with a legal approach and case studies of several Constitutional Court decisions which contain open legal policy arguments. Conceptually, this research will also discuss the implications of the Constitutional Court's decision containing the open law policy for the national legislative system. Results: The research results show that first, the concept of open legal policy in Constitutional Court decisions does not yet have clear boundaries so that the meaning of positive legislator and negative legislator is often confused in the practice of forming and reviewing laws. This decision, which is an open legal policy, also shows that there has been a tug-of-war between the judges of the Constitutional Court in using the paradigm of judicial activism and judicial restraints, giving rise to legal uncertainty in society.

Dear reader,

This year’s Juridica International compendium offers articles on a wide variety of topics. From an initial glance, the problems tackled in those articles might not seem to have so much in common. Yet, even though offering windows to several quite distinct cross-sections of legal scholarship, many of the pieces, upon a closer look, reveal themselves to be very much interrelated. One notices that most of them share a theme of concern arising from crises in society that have recently come to a head, with a leitmotif of concern for the future and of venturing into unknowns – a backdrop so familiar to us these days’ that we might not even recognise its peculiarity. Contemporary times are marked by complex global developments such as the pandemic, the ongoing wars in Ukraine and of Israel/Hamas, a still very much unwritten future of AI influencing all aspects of life, etc. In times such as these, the law assumes a critical role in shaping not only our current doings but the course of human affairs far further down the line as well. The corresponding concern for our global future can be characterised as underpinning this edition from its very first article, a paper whereby Astrid Stadler calls on the courts to save the climate. The same focus could be ascribed to the examination of sensitive health data’s application as presented from research by Maret Kruus and the analysis penned by Kai Härmand examining AI’s impact on judicial action. Their scholarship silently invites us to ponder the profound influence that the judiciary and the legislature can have on the future. Furthermore, the need to accommodate in the manner most beneficial for society and for every individual alike seems to give significant impetus for such research. The article by Jānis Neimanis on recent Latvian Constitutional Court case-law reflects concerns of a similar nature, via illustrations from the response to SARS-CoV-2, empowerment of marginalised groups, and protection of democracy. While the work of Neimanis demonstrates how legal response may manifest a balancing act between individuals’ rights and the broader public good, other pandemic-related articles analyse the angle of palliative efforts by national legislators or simply struggles for efficiency within the complicated field of public procurement in crisis-ridden times. The piece by Şimal Efsane Erdoğan and Oana Ştefan and that by Raquel Carvalho, in turn, allow us to compare national reactions in this regard. I am immensely pleased to note that these articles reflect fruitful discussion of public procurement in times of crisis from a highly successful conference held on this topic at the University of Tartu’s School of law last January. Finally but surely not least, I stress that I in no way wish to underestimate articles that, by dealing with somewhat more stability-rooted aspects of jurisprudence, are centred less on crises or struggles. Age Värv writing about the role of foreign sources in Estonian case-law; Aleksei Kelli, Margus Pedaste, and Äli Leijen providing a most interesting empirical view of the so-called education exception to copyright (a subject every academic certainly has come in contact with); the analysis Eneli Laurits provides of protecting privacy in certain criminal investigations; eye­witness identification as revisited comprehensively by Annegrete Palu and Anneli Soo; and, finally, the description of a ‘super‑judge’ safeguarding such realms, by Julia ­Laffranque, offer plenty of hearty food for legal thought. I extend my warmest thanks to all of the authors for addressing these difficult topics, thus advancing legal scholarship and, through their contribution, serving the common good.

Legislative Prerogative or Judicial Fiat: Mandating Electronic Recording of Stationhouse Interrogations in Tennessee

Legislative Prerogative or Judicial Fiat: Mandating Electronic Recording of Stationhouse Interrogations in Tennessee

Uplatňování zákazu diskriminace ve státní službě

The article discusses the application of the principle of equal treatment and the prohibition of discrimination in the context of public service. While employees who feel discriminated against often resort to legal action in civil courts or raise discrimination claims in other civil proceedings, the situation in employment relationships within the public service is less clear. The author examines how the law on public service refers to the relevant provisions of the Labor Code and explores the compatibility of the regulations designed for employment relationships with the specific nature of public service relationships. The article also emphasizes the importance of addressing discrimination claims in the appropriate procedural framework. Despite the increased element of subordination in public service, the principle of equal treatment and the prohibition of discrimination can still be invoked by public servants, as European law does not allow otherwise. The article analyzes the case law of the Czech supreme courts and its consequences.

The objective side of crimes regarding the activity of mercenaries

The visible activities that are undertaken by each individual, can serve as a basis for ascertainment or evidence in a judicial action. These activities, in terms of legal-criminal legislation, can be defined as the totality of the external facts of the person, and at the same time – framed in the terminology of the objective side of the crime, which in turn is a component part of the entire crime component. Without the objective side – there is no crime. Thus, we can mention with certainty that, knowing the objective aspects of crimes, can allow us to achieve a qualification of the illegalities committed in the objective reality. In the conditions that follow, we propose, as a basis, to analyze the actions or inactions of subjects who are liable to commit the crime of mercenary activity.

Deference, Dignity and ‘Theoretical Crisis’: Justifying ECtHR Rights Between Prudence and Protection

Abstract The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.

Sexual Assault in Older-Age Adults: Criminal Justice Response in New Zealand

ABSTRACT There is growing recognition that older persons, both male and female, may experience sexual assault. One clearly identified gap in the body of scientific literature is examination of the criminal justice response for older adults who have been sexually assaulted. This retrospective age-group comparative data analysis examines publicly available population and police statistics for 2018 to describe rates (per 100,000) of reported sexual assault across adult age categories (young adult, n = 748; adult, n = 1,478; middle age, n = 290; older adult, n = 58) and compare (using Chi-square bivariate analysis) the criminal justice response to sexual assault for these adult age categories in New Zealand (NZ). Sexual assault was perpetrated against victims across all age and sex groups examined. The rate of reported sexual assault against older adults was significantly lower after the age of 65 years (7.90 per 100,000) compared to younger adults aged 20–64 years (87.57 per 100,000). Across age categories no difference was found in the proportion of cases proceeded to court action. This study raises awareness of the topic of sexual assault perpetrated against older persons and shows that a substantial number of older adults experience sexual assault in cases that do not result in court action. It points to the need for policy-makers to consider the reporting of sexual assaults against older persons to justice services.

An Appraisal of the Use of Plea Bargaining in the Nigerian Justice System

Plea bargaining as an instrument of justice dispensing has been vilified by many judicial actors and political commentators. This is due to the popular opinion that it favors corrupt high-ranking public and private officials when they are made to face the law. This opinion is anchored on the Marxist school of thought that emphasizes the economic power of the political actors above other societal elements, including the justice system. However, this study reveals that plea bargaining principles also have its merits. Among the identified merits is the fact that plea bargaining helps to reduce the cost of ligation and other associated costs that the State needs to bear in the course of prosecuting corrupt suspects. Also, by deciding cases summarily and speedily through plea bargaining, the court can have time for other cases that need speedy attention thereby ensuring that those concerns receive timely justice. Plea bargaining as an instrument of justice dispensing needs to be encouraged albeit with modifications. The modification should include an element of sufficient deterrence, despite the cooperation of the accused. The essay suggests how to balance the gains of plea bargaining with thorough and truthful dispensing of justice. I submit that plea bargaining is not unjust but there must be a legal framework within the Nigerian justice system that will be a template that will prescribe when, how and for which case the principle can be applied.

Judicial Activism vs. Judicial Restraint: A Critical Analysis in the Indian Context

This paper delves into the contrasting concepts of judicial activism and judicial restraint within the framework of the Indian judiciary. It provides a historical perspective on their evolution and influence, and then undertakes a comprehensive examination of their impact on the Indian legal system, democratic governance, and judicial legitimacy. Through an analysis of seminal cases and scholarly perspectives, this paper seeks to elucidate the delicate equilibrium that must be maintained between judicial activism and restraint for the effective functioning of India's legal and political institutions.

JUDICIAL ACTIVISM AND METHODS OF INTERPRETATION

A distinct characteristic of the judicial activity of integration courts is that it is aimed not only at resolving legal conflicts, but also at interpreting the law in order to fill the existing gaps. Filling legal gaps may be described as a key function of an integration court. This special characteristic leads to the phenomenon of judicial activism. The study of the case law of integration courts reveals the possibility to formulate activist legal findings using different methods of interpretation. The possibility to use the teleological method of interpretation, which is the most suitable in order to eliminate legal gaps, stems directly from the provisions of the Vienna convention on the law of international treaties. The analysis of the acts of the Court of Justice of the European Union allows to establish a strong correlation between activist approaches and the use of the teleological method of interpretation. However teleological interpretation does not necessarily mean the choice of the most progressive available options. Often the activism manifests itself in the search of a balance between the interests of the integration organization and its Member States. The Court of the Eurasian Economic Union develops activist approaches by using both traditional methods of interpretation and teleological interpretation as well as having recourse to constitutional traditions of the Member States.

Suspicious activity reporting in the United Kingdom and the United States: statutory obligations of auditors and optimal harvesting of information

PurposeThis study aims to evaluate the advantages and disadvantages of auditor mandatory suspicious activity reporting versus the exercise of professional judgement in the anti-money laundering regimes of the UK and the USA.Design/methodology/approachThe research draws upon the following sources. Firstly, statistics provided by the UK National Crime Agency, 2019 (NCA) regarding suspicious activity report (SAR) filing rates. Secondly, anti-money laundering legislation in the USA and UK. Thirdly, statements made in the political domain in the USA, particularly those which raised constitutional concerns during the progress of the Patriot Act 2001. Finally, statements and recommendations by a UK Parliamentary Commission enquiring into the effectiveness of the suspicious activity reporting regime.FindingsThe UK reporting regime does not accommodate professional judgement, resulting in the filing of SARs with limited intelligence value. This contrasts with discretionary reporting in the USA: voluntary reporting guides and influences auditor behaviour rather than mandating it. Defensive filing by UK auditors (defence to anti-money launderings [DAMLs]) has increased in recent years but the number of SARs filed has declined.Originality/valueThe study evaluates auditor behavioural responses to legislative regimes which mandate or alternatively accommodate discretion in the reporting suspicion of money laundering. Consideration of constitutional and judicial activism in this context is a novel contribution to the literature. For its theoretical framework the study uses Foucault’s concept of discipline of the self to evaluate auditor behaviour under both regimes.

Judicial practice and its unity: problems of definition and ways of their solution

Emphasizing the importance of judicial practice, the author notes that based on the results of the assessment of various aspects of judicial practice, conclusions are drawn about trends in judicial activity, about the effectiveness of procedural legislation, legislation defining the rules for the formation and functioning of the judicial system, as well as other legal acts, about the level of legality in judicial activity, as well as in the activities of pre-trial proceedings (for example, in the field of criminal justice), ensuring the rights of the individual and on many other issues. Particular attention is paid in the article to the definition of the very concept of "judicial practice", based on the identified characteristic features that allowed to reveal its essence and formulate a definition. The study also draws a correlation between "general applicability" and such concepts as "unity of judicial practice" and "uniformity of judicial practice". In his research , the author comes to the following conclusions: 1. Judicial practice is a set of any procedural acts created in the course or as a result of judicial activity. Judicial practice should include both court decisions (final or interim) and protocols of judicial actions, as well as other documents that may become the basis for the occurrence of legally important consequences. 2. General applicability is considered as the possibility of using the results of one judicial body by other courts in their procedural activities. 3. The unity of judicial practice is considered as a property that is not inherent in judicial practice by definition, but it is a necessary quality that is subject to formation in judicial practice by taking appropriate measures on the part of the authorized judicial body

Investigating Judicial Activism in Pakistan: Analyzing Significant Precedents in the Promotion of Environmental Sustainability

Within the context of ecological conservation, the function of the judiciary has become increasingly significant as a powerful institution. The ever-changing terrain of judicial activism in Pakistan is a debatable matter, with a particular emphasis on its role in promoting the preservation of the environment. This paper investigates the role of Pakistani courts as protectors of the environment and their influence on policy settings and advancements toward sustainability, by analyzing certain relevant case laws. This study investigates the actions and judgments made by tribunals and courts, as well as their subsequent impacts on practices and laws related to the preservation security, and sustainable growth of the environment. The selected legal cases cover a wide range of ecological concerns, enabling a comprehensive examination of the impact of legal activism on areas such as waste oversight, resource administration, and protection endeavors. This analysis examines many issues that could impede the effectiveness of judicial activism, such as limitations in resources, gaps in execution, and possible disputes between the goals of ecological protection and financial constraints. This essay aims to offer a comprehensive examination of the intricate relationship among the legal system, ecological problems, and the endeavor for stability. This paper will add to the ongoing conversation on the influence of judicial activism in defining ecologically conscious notions in Pakistan by synthesizing the outcomes of significant cases. This statement highlights the significance of an active court in supplementing the endeavors of both the executive and legislative branches, thereby cultivating a mutually beneficial association between legal principles and the environment. In essence, this investigation provides a basis for future discourse regarding the potential for statutes and judicial rulings to more effectively harmonize with sustainable development objectives, all while negotiating the intricate landscape of ecological problems in Pakistan.

An Analysis of the Abortion Issue in America: Judicial Activism from the Perspective of Conflict of Rights

Abortion has been recognized as the most controversial and emotional issue in the United States, debate of which has lasting for three decades. The overturning of Roe v. Wade is considered to be one of the major goals of the Republican presidential campaign. As a country with many parties and religions, the debate of abortion has been a constant battle ground between warring factions. Since Roe v. Wade, the pro- and anti-abortion sides have used the right of patients to autonomy and privacy and the unborns right to life as arguments, triggering a debate over the right to choose and the right to life. However, there are also more views that the issue raised by the Supreme Courts overturning of Roe v. Wade is actually a question of whether the law interferes excessively in political issues. Does it infringe on the legislative power of the states and even the spirit of democracy? This paper attempts to start from the appeal of right protection, go back to the Warren Court, and think about the changes of the meaning of right under judicial activism, so as to carry on the discussion of democracy and freedom.

Analisis Putusan Hakim Pengadilan Agama Kabupaten Cirebon pada Prosedur Eksekusi Sita Jaminan Perkara Murabahah

This research analyzes the decision of the Sumber Religious Court of Cirebon Regency in the procedure for executing the confiscation of sharia mortgage rights in the murabahah case Number 2008/Pdt.G/2020/PA.Sbr. This research pays attention to the role and actions of religious courts in handling execution cases, assessing debt collateral, and protecting the rights of debtors and creditors in sharia economic cases. The author uses a qualitative method with a normative approach. The analyzes primary data such as the judge's decision and related documents and analyzes secondary data as a source of information which includes literature study. This execution process involves the State Property and Auction Services Office and may face challenges from debtors or third parties. The case study of case Number 2008/Pdt.G/2020/PA.Sbr shows that the execution mechanism for the auction of mortgage rights was carried out outside the Sumber Religious Court, Cirebon Regency, without a court execution order. The judge considers it according to the applicable legal basis. As a result, the Plaintiff's lawsuit was rejected because of the implementation of the auction by Bank BRI Syariah.Tbk Cirebon Branch Office was deemed to be in accordance with the law. Default by the Customer is the main reason for this decision.