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This article is written by Shivali Srivastava from National Law University, Odisha edited by Neha Mallik. This article analyses the related variables of judicial activism and evaluates its impact on judicial activism as against the context of international legal practice.

Introduction

Judicial activism in international law has not received much academic attention, and the increasing importance of international judicial decisions gives rise to the issue of the relationship between judicial bodies and other actors affected by their actions which can be captivated through the concept of judicial activism. It is the principle of the judiciary that courts can and should go beyond the terms of the constitution or any law to recognize wider social consequences of their decisions. Often, it is used as an antonym for judicial restraint. The concept of judicial activism and the actual activist decisions are contentious political issues. The problem of judicial independence is closely linked to constitutional enforcement, the creation of laws and the separation of powers.

Defining judicial activism

Black’s Law dictionary describes judicial activism as a “philosophy of judicial decision-making in which judges allow their personal views on public policy to direct their decisions, among other factors.” The basic definition already existed before this expression was first employed. Thomas Jefferson, for example, spoke of the “despotic conduct” of federalist federal judges, especially Chief Justice John Marshall.

Judicial advocacy, a judicial review approach, or a summary of a specific judicial decision under which a judge is usually deemed more likely to rule on constitutional issues and invalidate legislative or executive acts. Keenan D Kmiec presents the following ‘central significances’ of judicial activism in a report that provides useful historical context:

(1) invalidation of the constitutional acts of certain branches, if possible;

(2) breach of precedent;

(3) “legislation” of a judicial nature;

(4) deviations from agreed methods of interpretation;

(5) focused decision.

Within a book-length analysis dedicated to the judicial activism, the author of the book Sterling Harwood describes activism as one of the mentioned adjudicative practices: 

(1) failing to take a stance of judicial deference for executive or legislative potential or decision; 

(2) the relaxing of the justiciability criteria;

(3) violating precedent;

(4) fabricating constitutions, laws or precedents loosely or controversially.

Unlike domestic law, the idea of judicial activism in foreign law has not gained much attention. Thirlway differentiates between ‘formal’ and ‘substantive’ forms of judicial activism. Where the formal style of judicial intervention is concerned, the judge handles the legal issues including those that may be necessary to constitute the conceptual framework that eventually leads to his decision to contribute to what the judge understands or perceives as the creation of law. A substantive kind of judicial activism focuses on a particular type of activism. ‘Being dissatisfied with established law, or with any provision of the law which he considers to be a loophole in established law,’ a judge engaging in substantive judicial activism ‘will be able,’ argues Thirlway, ‘to partake in anything similar to transparent rule-making to justify his judgment.’

Parameters of judicial activism

There are a number of parameters or conditions that aid in assessing judicial activism.

The structure of political influence

Judges do not function in a closed environment. Since court orders are aimed at specific audiences, the judges are appropriately prone to the responses of those target audiences. At the very same time, the political interlocutors of judges are difficult to be neutral judicial decision-taking observers considering the political consequences of multiple judgments. Therefore, any communication between the judges and the interlocutors is a significant parameter for the analysis of judicial attitude, particularly if that communication gives way to something that is called shared ‘expectation of expectations.’ By using Bourdieu’s concept related to the theory of practice, it can be said that the interaction ‘works as a self-regulating system configured to redefine paths of actions in compliance with data obtained on the acquisition of transmitted data and on the impact generated by that data.’ So as far as the concept of judicial activism is concerned, the key elements are the means of ‘out’ and ‘speech’ accessible inside the system to those who are dissatisfied with the judicial decisions. Accordingly, as commonly stated in the literature on political science, ‘as far as the courts are concerned with shaping policy, they have a chance to predict legislative as well as the executive consequences when they make their decisions.’

The legitimate role of academics in the legal world

As stated by late Sir Robert Jennings, ‘the greatest significant aspect of the functions of the judiciary is to be considered to be applying current, established statutes or principles of law’ even though ‘a court introduces law in the context of creating, adjusting, changing, filling holes, understanding or even moving out into a novel direction.’ Since the judicial activism as portrayed in this article relies on the theory of what is an acceptable and the correct course of action in the judiciary, the scope that judges have to enjoy in a legal department also relies on the extent of efficacy with which the analytical debate on the law performing this legitimating role. The scholarly provision has strong consequences for the manner in which legal analyzes are conducted: the legal analyst normally only looks at ‘noble’ explanations and public-related clarifications and is hence committed to the term that has been created which is ‘legalism,’ an approach consisting of seeing or treating ‘the case law as the unavoidable working out of the right consequences of the text.

The nature of the proceedings

In this respect, several parameters can be important. Technically, an advisory case may not have to face enforcement concerns and hence can require a greater freedom of interpretation for judges. In the same manner, permanent tribunals could feel less limited than those nominated by the parties. Several parameters can be significant in this respect. Technically, an advisory case does not have to face compliance issues and thus, may allow more flexibility for judges to decide. Likewise, standing tribunals may feel less constrained than those nominated by the parties.

advocate

The conception of judicial function

Whether judges and other actors envision the essence and extent of the judicial role in a legal system obviously depends on the manner in which judges go about judicial affairs. A distinction may be made between two ideal models of particular significance for the purposes of this article. Judicial purpose can be loosely interpreted as having to determine individual cases without following any grand plan. According to some, an international tribunal’s role is limited to determining cases presented to them. Others, while acknowledging that case-management is part of the judicial job, also feel it is necessary to use the opportunity of particular cases to serve wider purposes. The key judicial principle that must direct judges is the judicial economy for those who hold the view that judges are simply ‘dispute-settlers’: whenever a case may be resolved on several grounds, judges must, in this respect, give priority to the least contested grounds.

In the case of the arrest warrant, the International Court of Justice wisely overlooked the contentious issue of universal jurisdiction and determined the matter on the less contentious basis of immunity, even when the question of universal jurisdiction was clearly ahead of the immunity question. Similarly, the advisory opinion on Kosovo somewhat disingenuously ignored the contentious issues concerning the effect of unilateral independence or Kosovo recognition. Many who believe the role of judges goes beyond the decision-making of particular cases may argue that the ICJ would have taken advantage of certain opportunities to explain contentious international law aspects. The point made here is not that all international tribunals should conveniently be separated into these two clear-cut groups. Individual judges can and do obviously vary in their understanding of the judicial functions and at various times any single tribunal may engage with different philosophies. That said, it does not seem very far-fetched to say that there is a certain institutional identification in any established international tribunal. It is also possible to find a ‘core of narrative gravity’ for each of them during the entire case law they create. Some of them promote the challenge by making their theory of justice clear.

Extent of determinacy in the national and international law

In terms of ‘what is law,’ international law is highly vague. Few foreign lawyers still agree today that the definition provided for in Article 38 of the ICJ Statute leads to a detailed summary of what constitutes international law. It is hard to assess the status of international law principles, guidelines, best practices, criteria or transnational regulatory frameworks with any fair amount of certainty. The indeterminacy and ambiguity of international law in ‘what the law is’ may seem less remarkable given that national law does not seem to be extremely different in this contention. However, it can be claimed that the concept of indeterminacy at this stage is manifested to a greater extent in international law because international law involves reaching compromises among a broader variety of divergent interests. International law’s normative substance is full of references to largely undetermined terms such as ‘equitable,’ ‘just,’ ‘rational,’ ‘due diligence,’ etc. Such an indeterminacy will possibly motivate foreign judges.

Lack of an organized judicial system

This appears to be another aspect of international law, which is likely to improve foreign judges’ power. As recently mentioned by the special tribunal for Lebanon, ‘each tribunal constitutes a self-contained body’ in international law. The lack of an organized judicial system in international law means that judicial decisions are final except in very specific cases and that judges are not subjected to any limitations arising from higher judicial instances. In the sense that, it does not imply that judicial conduct is unconstrained at international level nor does it imply that judges are not prone to any institutional consideration. The argument is that the intent of international judicial decisions increases the discretionary space of international judges, regardless of whether discretion is used in practice, thereby influencing international legal actors’ expectations.

Conclusion

The above remarks allow us to draw a tentative conclusion that advocates of ‘legalism’ could hardly adhere to: formal criteria are never dispositive of the position of judges, and the real power that judges end up having in any legal system depends on the context in which they operate, on the acceptance of their decisions and on a variety of other parameters discussed above. This is especially true in international law, where it is notoriously unclear how to delimit powers. The suggested solution also accounts for a curious anomaly, namely the fairly significant power of judges in an environment where the normativity game’s systemic logic doesn’t seem to leave much room for a genuinely powerful judiciary at first sight. Since the contours of judicial power do not rely on formal rules decided once and for all, judicial power as described in this study is a phenomenon which is constantly shifting. The principal aim of this article was to define the related variables and to evaluate their respective impact on judicial activism against the context of international legal practice.

References


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