Mar 06, · Judicial activism. Judicial activism is the philosophy indicating that in some cases, judges should be allowed to construe the constitution in such a way that it reflects contemporary conditions and values Judicial Activism Essay Essay Example Some of the rights recognized by an activist court are not so controversial, For instance, the Supreme Court has held that there is a right to travel between the states Judicial activism can in general terms be defined as judge legislating on the bench. Judicial activism is a situation where the presiding judge or jury issues a judgment on a case based on his or her political or personal thoughts. The judgment may also be based on pressures that emanate outside the constitution
Judicial Activism in Australia - Words | Essay Example
The constitution is the highest authority in many nations of the world including Australia and should be adhered to the latter. The judicial systems of these nations respect the constitution. However, in some situations, interpretation of the law is vital as some laws are ambiguous or absent. This essay shows that it is legitimate for the judges in Australia to engage in judicial activism. Judicial activism is the philosophy indicating that in some cases, judges should be allowed to construe the constitution in such a way that it reflects contemporary conditions and values. Liberalism, which is a belief in expanding the power of the government by construing the constitution broadly in order for it to be used to exact issues, supports this Magleby.
Judicial activism occurs in a case when a judge decides on a case that is based on political or personal ideology or by giving in to pressure from special interests instead of sticking to the previous guide or the constitution. In a system with a separation of power, judicial activism disregards it and makes a new regulation that affects the country wholly instead of settling a specific case being tried Holetzky, par. In the government systems of many nations of the world, essays judicial activism, legislation is never done by the judiciary because it is not elected but only appointed. It can include a case whereby judges override existing laws or make certain doctrines legal without any support or precedent.
This situation recreates or undermines policy in most cases social policy Holetzky, par. Some cases cannot be heard through judicial activism. This is because they are not addressed in the constitution. A good example is an abortion or same-sex marriages that can only be decided by the people and the states otherwise they have to be included first in the constitution so that judicial activism can be applied Holetzky par, essays judicial activism. This common law is used in several countries like the United States, Canada, Australia, India, essays judicial activism, Malaysia, and New Zealand.
Common law is the system of law that was developed in England. It contradicts the system that was derived from the Roman law often regarded as the civil law that is operational in South America, Europe, and Japan. In the UK, judges who operated in the courts that had been created by the king established common law. The reason why it is referred to as the common law is because it established one law that was common to the entire British kingdom. The law was set by King William who essays judicial activism with the chief landowners wanted to strengthen their hold on the kingdom to run it smoothly Craig, par. In the separation of power essays judicial activism, the judiciary should always be independent of both the legislature and the essays judicial activism. However in the Common law system, the judges make sure that the laws that have been made by the legislature have been obeyed.
However, essays judicial activism, when new situations arise and values undergo a change, justices and judges can decide the issue differently. When the judge decides a case strictly according to a precedent, essays judicial activism, it may appear like an injustice. This is where the judicial essays judicial activism came about whereby even if it is not the duty of the judges to make a law, they can use the law to fit in a new situation. In Australia and the United Kingdom, essays judicial activism, other parts of the common law have become very compound, forcing the legislature to either replace them or reform them Craig, par. In Australia, the common law has in the recent past overlaid by stature and it exists in recent times as a weakened form.
This, therefore, indicates that the common law is not what it used to be. The purpose of common law was to protect people against the ever-expanding and overreaching power of the government Cooray, par. The doctrine of judicial precedent which is also referred to as stare decisis describes the fact that in the hierarchical structure in courts, any decision made by a higher court is binding on a lower court of that hierarchy. In the explanation, essays judicial activism, this means that judges should check to see whether a similar case had been handled by any other court before. If either a higher court or one of an equal status set the precedent, the judge would be obliged to abide by the rule that was established in the previous case.
However, essays judicial activism, if that precedent was from a lower court, the judge should consider it afresh but now follow the precedent. This means essays judicial activism decisions by higher courts should remain binding on lower courts example essays, par. The advocates of a strict view of precedent in Australia state that the continuity, consistency and predictability that results from sticking to precedent is important in maintaining public confidence in the work of the Judiciary and the rule of the law Kirby p. However, one Australian Judge stated that he saw a great danger of injustice if there is high rigidity in adherence to the precedent.
This is always seen as the opposite of judicial activism. It is a theory that discourages the judges from exercising their power. This means that judges should refrain from ignoring laws unless, of course, they are contrary to the constitution of the land. A jurist is required to sustain the law as much as possible. Jurists following this theory usually respect the judicial precedent Eastern Michigan University, par. The justices come to realize that those framers never thought of everything and so as the time elapses, new situations come up and the constitution needs either to be interpreted to suit that situation, essays judicial activism. This means that judicial activism is very necessary for such a situation Uiowa, par.
On the other hand, judicial activism has been criticized as allowing adrift from the actual constitution, creating a kind of a constitutional crisis Uiowa, par, essays judicial activism. The detractors of the system have also claimed that it usurps the power that belongs to the branches of the government that have been elected and thus it becomes essays judicial activism enemy of democracy and the rule of the law. Heydon p. He further gives two types of completely illegitimate pressures that drive judges to move away from probity and therefore evidencing judicial activism.
One of them is the need to taint judicial decisions with personal opinions on every issue and the second is the wish to state the law applicable in a manner that is entirely unblocked by its former state, with essays judicial activism perception that it should be different Heydon p. From the conclusion, essays judicial activism, it is vivid that when the law is interpreted by Australian judges in a way that does not contradict the constitution, essays judicial activism, then such judicial activism is legitimate. This is because the constitution was framed without understanding the changes that would take place in the future. However, in a situation when the judges would use their personal opinion to decide a case and in the process create constitution crises; this would be illegitimate as the constitution is the highest authority in Australia.
Though judicial activism is justifiable in specific situations, judicial restraint should also be observed so that democracy can be essays judicial activism to. In situations that arise and are not in the constitution, it should be the work of the legislature to amend it and add the law. Need a custom Essay sample written from scratch by professional specifically for you? essays judicial activism writers online. Judicial Activism in Australia. Introduction The constitution is the highest authority in many nations of the world including Australia and should be adhered to the latter. Learn More. This essay on Judicial Activism in Australia was written and submitted by essays judicial activism fellow student.
You are free to use it for research and reference purposes in order to write your own paper; however, you must cite it accordingly. Removal Request. If you are the copyright owner of this paper and no longer wish to have your work published essays judicial activism IvyPanda. Civil Procedures in New Zealand Property Law and Contracts: Edwards and Landry Case. GET WRITING Essays judicial activism. Cite This paper. Copy to Clipboard Copied! APA-7 APA-6 MLA-8 Chicago N-B Chicago A-D Harvard. Reference IvyPanda. Work Cited "Judicial Activism in Australia. Bibliography IvyPanda. References IvyPanda.
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What is Judicial Activism?
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Oct 17, · Judicial activism can in general terms be defined as judge legislating on the bench. Judicial activism is a situation where the presiding judge or jury issues a judgment on a case based on his or her political or personal thoughts. The judgment may also be based on pressures that emanate outside the blogger.comted Reading Time: 11 mins Judicial Activism essaysJudicial Activism is a doctrine that describes the way a court should actively access its' power as a check to the activities of governmental bodies, when it is thought that those bodies have exceeded their authority. Roger Clegg, vice president of the National Legal Ce Judicial Activism Essay Example But I shall try to place a few aspects of it before you to demonstrate how through activism we in India have developed our human rights Jurisprudence and brought help and succor to the asses of people in the country
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