Judicial Activism vs Judicial Restraint: Difference and Comparison

The judiciary is one of the important sentinels guarding the democracy of a country. The judiciary consists of a code of conduct responsible for upholding law and order on behalf of the state.

It is one of the powerful tools in protecting the liberty and rights of all citizens.

The judiciary is also responsible for providing fair and unbiased justice for all on behalf of the state. The ever-changing dynamics in a state’s social, economic, etc., bring a moral necessity for the judiciary system to adapt to the evolving challenges.

Many concepts were developed to improve the judgmental actions taken by the judge to deliver the proper verdict. The two main concepts are judicial activism and judicial restraint.

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Judicial restraint and activism are the two sides of the same coin.

Both are opposite to each other in terms of ideas and philosophy. The above two concepts have various theories and doctrines on which it was built.

Judicial activism refers to the philosophy insisting the judiciary body go beyond theoretical laws to consider the broader community implication of their decision. It motivates the judicial body to make decisions based on the needs of society and its welfare.

Judicial restraint refers to the decisions taken by the judicial body purely on existing laws and doctrines. This concept emphasizes that the judiciary should not intervene in political decisions unless and until a clear violation is made against the legislature.

Key Takeaways

  1. Judicial Activism involves judges interpreting laws to reflect current societal values, while Judicial Restraint involves judges strictly interpreting laws as written.
  2. Judicial Activism can lead to more progressive social changes, while Judicial Restraint can maintain the status quo.
  3. Judicial Activism can be controversial, as it can be seen as judges overstepping their bounds, while Judicial Restraint can be seen as judges being too passive.

Judicial Activism vs. Judicial Restraint

Judicial activism is an approach in which judges interpret the law in a way that advances social and political goals, even if those goals are not explicitly stated in the law. Judicial restraint is an approach in which judges limit their interpretation of the law to the specific language of the law itself, and avoid making decisions.

Judicial Activism vs Judicial Restraint

Judicial restraint tries to refrain from interfering in political decisions, but judicial activism does not hesitate to interfere in political decisions.

Comparison Table

Parameters of ComparisonJudicial ActivismJudicial Restraint
DefinitionIt involves judiciary decisions while keeping the social implications in mind.Refers to the judicial decision taken by the judge, which is purely based on the framework of the constitution.  
FunctionEmerging social dynamics are taken into account while a decision is made.Decisions are purely based on statutory and constitutional mandates.
Dependent onPersonal and social interpretation by the judicial body.Purely on the constitution and the rules laid.
AdvantageEnsures that the decision covers the need for the various aspects of the dynamically changing society.Ensure that the decisions follow the protocols the constitution strictly laid out.
DrawbacksExcess judicial activism might turn the judiciary body into a legislative body.Excess judicial restraint might fail to consider the emerging dynamics in society.

What is Judicial Activism?

Judicial Activism refers to the philosophy of making decisions based not only on traditional laws but also on changing dynamics in society. This term was coined by Arthur Schlesinger in the year 1947.

Black’s Law Dictionary defines judicial activism as a philosophy that encourages judges or judiciary bodies to make decisions favorable to new social and progressive policies despite shifting away from the traditional framework.

Judicial activism paved the way for interpreting laws based on the broader social context. In judicial activism, the judicial decisions would have a mix of political and personal reflections of the judiciary body.

The judiciary body makes decisions favorable to the public when the executive body or government fails to do so. This aspect of judicial activism has gained both appreciation and criticism.

Skeptics feel that judicial activism meddles in political decisions, which should be kept separate from the judiciary. Their point of the argument is that political decisions have a wider motive apart from the announced motive which cannot be understood easily or explained due to some external or internal reasons.

Hence, there should be no directives from other bodies unless and until the fundamental right of a citizen is denied. But there are so many supporters for judicial activism.

Supporters feel that judicial activism motivates the judiciary body to go beyond theoretical laws in a judgment.

There are some decisions that are framed based on existing laws without considering the needs of the present dynamic scenario. Judicial activism empowers the judge to go against the legislator’s decisions if the situation demands it.

judicial activism 1

What is Judicial Restraint?

Judicial restraint is another concept in the judiciary field, opposite to judicial activism. It refers to the decision or judgments the judge or the judiciary body takes purely on existing laws alone.

It never meddles with the political decision unless the governing body has made a clear violation.

In judicial restraint, the judiciary body deeply respects the stability in lawmaking. According to ‘Fundamentals of Judicial Philosophy,’ a judicial restraint judge believes that the judiciary remains the least powerful among the three government branches.

The judge also believes that democracy has both instrumental and intrinsic value.

Supporters of judicial restraint state that the judicial body should not interfere in political decisions as it does not have any policy-creating powers. The judicial body can only direct or guide the authorities to carry out activities based on law.

judicial restraint

Main Differences Between Judicial Activism and Judicial Restraint

  1. Judicial activism deals with the decision taken based on the needs of society. In contrast, judicial restraint is based on making decisions purely on the rules and regulations laid by the Constitution.
  2. Judicial activism considers changing aspects of society, whereas judicial restraint is not obliged to consider the broader aspects.
  3. Judicial restraint never interferes with the decision taken by the legislative body unless a clear violation arises as directed by the Constitution. But this is not the case with judicial activism.
  4. Judicial activism prioritizes social welfare, whereas judicial restraint focuses on laws laid by the Constitution.
  5. Judicial activism motivates the personal minds and creativity of the judiciary body in making decisions, whereas judicial restraint does not.
Difference Between Judicial Activism and Judicial Restraint
References
  1. https://www.jstor.org/stable/3481421?origin=JSTOR-pdf&seq=1
  2. http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html
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