VocabuLaw

Judicial Activism

What is it and what does it mean?

Description of the legal term Judicial Activism:

Judicial activism is a term that refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law. It represents an active role that judges may take in shaping public policy by going beyond the text of the law to implement progressive measures or by creatively interpreting the Constitution or laws. The concept is often discussed in contrast to judicial restraint, where judges adhere to strict and literal interpretations of existing laws and defer to the legislative and executive branches for policy-making.

The debate over judicial activism often hinges on the perception of the appropriate role of the judiciary within the democratic society. Advocates argue that the courts can act as a catalyst for social change and provide protection of rights when other branches of government are unwilling or unable to do so. Critics, however, argue that such an approach can undermine the rule of law and encroach upon the powers of the democratic institutions tasked with creating legislation.

In the British legal context, the role of judicial activism can be particularly intriguing, given the unwritten nature of the Constitution. British judges, particularly those in the Supreme Court (previously the House of Lords), have exercised a form of moderate activism by developing common law principles and sometimes providing interpretations of statutes that reflect current values and societal changes.

Legal context in which the term Judicial Activism may be used:

One example is the famous ‘Right to die’ cases. In the case of Airedale NHS Trust v Bland [1993] AC 789, the House of Lords had to consider whether medical practitioners could lawfully discontinue life-sustaining treatment. The law did not provide clear guidance. The Lords, in a landmark decision, developed the principle that it was lawful to do so in the patient’s best interest when the patient was in a persistent vegetative state with no prospect of recovery. This judicial decision paved the way for further development on the right to die issue, reflecting evolving views on patient autonomy and medical ethics.

Another pivotal moment in British law that illustrates the concept was the decision of the Supreme Court in the case of R (on the application of Miller) v The Prime Minister [2019] UKSC 41, related to the prorogation of Parliament in the lead-up to the Brexit deadline. The Court ruled that the Prime Minister’s advice to the Queen to prorogue Parliament was justiciable, that is, it could be subject to judicial review. The Supreme Court further determined that the prorogation was unlawful as it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions. This landmark ruling was seen by many as an assertive stance on the part of the judiciary which arguably straddled the line of judicial activism.

While some esteemed this judicial involvement was necessary to uphold constitutional principles, others perceived it as an overreach into the political domain. These debates underscore the tensions between judicial authority and the principle of parliamentary sovereignty.

The importance of understanding the term judicial activism in the British context lies in recognizing the delicate balance judges must strike between applying the law and interpreting it within the broader context of a dynamic society. Where legislative provisions are ambiguous or silent, British judges play a crucial role in filling the gaps and ensuring that justice is not static but evolves with societal values and needs. The concept challenges the notion of law as a fixed entity and underlines the judiciary’s role in the living, breathing development of legal principles that govern the lives of individuals in Britain.

This website is for informational purposes only and may contain inaccuracies. It should not be used as a substitute for professional legal advice.