Differences Between Judicial Review and Judicial Activism

Judicial review and judicial activism are two fundamental concepts in the realm of the judiciary. Both play essential roles in shaping the legal landscape, but they differ in their purpose, approach and implications.

This comparative analysis explores the difference between judicial review and judicial activism, highlighting their functions, contexts and consequences in the legal and political domains.

Judicial Review

Judicial review is a foundational concept in the field of constitutional law. It refers to the authority of a court, typically a constitutional or supreme court, to examine the constitutionality of laws, executive actions and government policies.

The primary purpose of judicial review is to ensure that these laws and actions align with the principles and rights enshrined in the constitution. It serves as a mechanism for upholding the rule of law, protecting individual rights and preserving the integrity of the constitutional framework of a nation.

Key Characteristics of Judicial Review

• Constitutional Adjudication: Judicial review is rooted in the principles of constitutional adjudication. Courts assess the constitutionality of legal and governmental matters, with a focus on whether they conform to the constitutional text and its underlying principles.
• Legal Precedents: The process of judicial review heavily relies on established legal precedents, including previous court decisions, interpretations of the constitution and established legal principles. Judges apply these precedents to determine the constitutionality of the matter at hand.
• Objective Interpretation: Judicial review is typically characterised by an objective and text-based interpretation of the constitution. Judges aim to apply the law as it is written in the constitution, ensuring that the rights and principles enshrined therein are protected.
• Check on Government Powers: One of the primary functions of judicial review is to serve as a check on government powers. It prevents the legislative and executive branches from overstepping their authority and ensures that their actions adhere to constitutional limits.
• Preservation of Constitutional Framework: By reviewing and, when necessary, striking down unconstitutional laws or actions, judicial review helps maintain the constitutional framework of a nation, preserving the balance of powers among the branches of government.

Judicial Activism

Judicial activism, in contrast, is a legal philosophy in which judges, particularly those in higher courts, take an assertive role in interpreting the law and shaping public policy. It often involves judges going beyond the strict text of the constitution or statutes to advance justice and address societal issues. While judicial activism can encompass a range of activities, it is primarily characterised by judges using their personal beliefs, values and interpretation of the law to influence their decisions.

Key Characteristics of Judicial Activism

• Policy-Oriented: Judicial activism is policy-oriented, focusing on achieving just and equitable outcomes, often in the absence of clear legal precedents or textual support. Judges may use their interpretation of the law to promote societal change.
• Expansive Interpretation: Judges engaging in judicial activism are more likely to interpret legal texts broadly and flexibly to achieve their desired goals. This can result in creative and expansive interpretations of the law.
• Personal Beliefs and Values: Judicial activism often involves judges bringing their personal beliefs and values into their decision-making process. They may use their own moral compass to guide their decisions.
• Addressing Societal Issues: Judicial activism is commonly associated with addressing pressing societal issues, such as civil rights, social justice and individual liberties. It allows judges to respond to evolving social and political contexts.
• Controversy and Debate: Judicial activism frequently generates controversy and debate. Critics argue that it can blur the separation of powers and that judges may exceed their constitutional role by engaging in policy-making.

Key Differences Between Judicial Review and Judicial Activism

Purpose

Judicial Review: The primary purpose of judicial review is to assess the constitutionality of laws and actions, ensuring they align with the constitution. It focuses on preserving the rule of law and protecting individual rights.

Judicial Activism: Judicial activism is policy-oriented, aimed at shaping public policy and advancing justice. It often seeks to address societal issues and promote equitable outcomes.

Approach

Judicial Review: Judicial review relies on established legal precedents, objective interpretation of the law and a strict textual approach to the constitution.

Judicial Activism: Judicial activism involves expansive interpretations, the use of personal beliefs and values and a policy-driven approach that may go beyond the strict text of the law.

Context

Judicial Review: Judicial review is grounded in constitutional adjudication and serves as a check on government powers to preserve the constitutional framework.

Judicial Activism: Judicial activism is often invoked in response to pressing societal issues, seeking to address injustices and promote change.

Legal Precedents

Judicial Review: Judicial review relies on legal precedents and established interpretations of the constitution.

Judicial Activism: Judicial activism may involve judges departing from or creatively interpreting legal precedents to achieve policy objectives.

Controversy

Judicial Review: While judicial review may also be subject to debate, it is generally less controversial than judicial activism, which can be seen as challenging the traditional separation of powers and engaging in policy-making.

Here’s a table summarising the key differences between judicial review and judicial activism:

Conclusion

In summary, judicial review and judicial activism are two distinct but interconnected concepts in the legal and judicial landscape. Judicial review is primarily concerned with ensuring that laws and actions conform to the constitution and its established legal precedents, while judicial activism takes a more policy-oriented and proactive approach, often involving the personal beliefs and values of judges. Both concepts have their roles and implications in shaping the legal and political fabric of a nation and their distinctions are essential for understanding the dynamics of the judiciary in any legal system.