A Study of Judicial Activism in the Context of Social and Economic Rights: In Pursuit of a Contextual Approach

Abstract

A relatively small body of scholarship which has attempted to define and measure judicial activism has largely focused on the application of legal principles about the traditional role of the judiciary. Judges are considered ‘activist’ where these traditional concepts are distorted in some way. Some scholars have attempted to define a finite number of contexts in which judges’ actions will constitute ‘activism’, whereas others have attempted to create broad principles which may be applied to any context. Disagreement has focused on whether jurisdictional relativism should be imported into the measurement system to accommodate discrepancies in legal principles – such as adherence to concepts like parliamentary sovereignty - or whether the principles should broad enough to apply to all jurisdictions. Another catagory of debate concerns whether the term should be a pejorative one, implying judicial abuse of power; or merely a description of actions that diverge from the judiciary’s normal area of jurisdiction. However, one constant feature which has tended to unite all scholars has been a reliance on traditional principles of power distribution, as the basis for the definition.