Legal activism
Judicial activism (Engl. Judicial activism ) refers to the willingness of a court for legal development . This activism is most evident in the interpretation of the law beyond the judicial self-restraint ( judicial restraint ).
The term judicial activism was coined by Arthur M. Schlesinger, Jr. (1947), although the concept behind it has been part of the legal and political discussion about the separation of powers since the beginning of the 19th century .
The term is used by Republicans in the United States to deny political interference by the US Supreme Court through broad interpretation of constitutional provisions. According to the Democrats, however , legal activism is necessary to protect minorities from irrational and discriminatory majority morality.
The Federal Constitutional Court has imposed a certain restraint on its case law in relation to the legislature . Nonetheless, it is criticized in some places that the Western European judiciary has been increasingly politicized by judicial activism since the 1980s. One indicator of legal activism is the increase in judicial reviews of government action ( judicial reviews ) and non-parliamentary committees of inquiry chaired by a high-ranking judge ( judicial inquiries ).
In the Federal Republic of Germany, a judge is not allowed to exercise legislative or executive tasks at the same time ( Section 4 DRiG ). During their term of office, judges of the Federal Constitutional Court cannot belong to the Bundestag, the Bundesrat, the Federal Government or the corresponding organs of a Land ( Section 3 (3 ) BVerfGG ). Activities in connection with a parliamentary committee of inquiry, for example as an advisor or expert, are therefore only considered after the end of the term of office.
Legal activism has also increased in India since the 1980s.
Web links
- Norm Ornstein: How Activist Judges Undermine the Constitution The Atlantic , September 18, 2014
- Judicial politics: Those "activist" judges The Economist , July 8, 2015
Individual evidence
- ^ Wolfgang-Uwe Friedrich : United States of America. A political geography . Leske + Budrich Verlag, 2000, ISBN 3-8100-2743-X , p. 74.
- ↑ Rainer Grote, Ines Härtel, Karl-E. Hain, Thorsten I. Schmidt, Thomas Schmitz (ed.): The order of freedom: Festschrift for Christian Starck on his seventieth birthday. Mohr Siebeck, 2007, ISBN 978-3-16-149166-5 , p. 1069.
- ^ Roger Craig Green: An Intellectual History of Judicial Activism. August 2008.
- ↑ Jens Eisfeld: Liberalism and Conservatism. The US discussion of legalizing same-sex marriages through court rulings . Mohr Siebeck, 2006, ISBN 3-16-148996-9 , p. 149.
- ↑ Jens Eisfeld: Liberalism and Conservatism. The US discussion of legalizing same-sex marriages through court rulings . Mohr Siebeck, 2006, ISBN 3-16-148996-9 , p. 140.
- ↑ BVerfGE 36, 1
- ^ Wolfgang Ismayr : Legislation in Western Europe: EU states and the European Union . Vs Verlag, 2008, ISBN 978-3-8100-3466-3 , p. 184
- ↑ Stefan Mayr: Committee of Inquiry into the Laboratory Affair - Tussling about Schottdorf Süddeutsche Zeitung, October 17, 2014
- ↑ Stefan Krempl: Ex-constitutional judge: State must protect against NSA spying heise online, May 25, 2014
- ^ Christian Wagner: The political system of India: An introduction . Vs Verlag, 2006, ISBN 3-531-14002-7 , p. 76.
