Professor, University of Macerata, Italy
The Concept and Practice of Judicial Activism in the Experience of Some Western Constitutional Democracies
In current legal language, the terms 'judicial activism' and 'judicial restraint' designate opposite approaches taken by judges to the text they are expected to interpret whenever the meaning of the words of which it is composed, or the intent of its authors, is not deemed sufficient for resolving the case. The more a judge feels himself free, in such circumstances, to give the text further meanings, the more he is considered 'activist'. Conversely, the more a judge prevents himself from giving the text those meanings, the more he is deemed to be following a 'restraint-based' approach.
While focusing on the meaning of the text, these definitions connect the terms 'activism' and 'restraint' strictly to the task of interpretation. Larger definitions associate such terms with further activities of judges. Whether judges should strictly apply the rules of standing, whether judges should not consider a case until the applicant has exhausted other remedies, and whether judges should avoid deciding 'political questions' are among the questions that sometimes are deemed necessary for distinguishing judicial restraint from judicial activism1. These definitions, although no less correct than that focused on interpretation of the text as such, are not appropriate for application in a straightforward comparative account of the experiences of constitutional justice, requiring enquiry into judicial activities that diverge greatly in individual legal orders. By contrast, as will be further demonstrated, interpretation of the text not only corresponds to the most important criterion for designating a judge's attitude as activist or not but is also particularly helpful in such a comparative account.
It has been noticed that "Individual words acquire real meaning only when they are viewed and interpreted within context. Myriad factors may combine to constitute that context: the other words within the sentence; the other sentences within the paragraph; the purpose of the text as a whole; the identity of the author and the expectations which we have of him; the identity of the reader; the social, cultural or political perspective from which he approaches the text, and so on. Thus it is naive to suppose that any text may have a fixed and settled meaning. Any given meaning which is ascribed to a text is, at least in large measure, a product of the external factors which influence its interpretation; the inherent meaning of the words which combine to form the text merely demarcate the parameters within which a range of specific meanings can be ascribed to that text." 2
This argument becomes crucial with respect to constitutional interpretation. The fact that constitutional rights provisions tend to be comparatively indeterminate, including general invocations of liberty, equality, due process, freedom of speech, and the like, leaves them more open to judicial interpretation than most statutes, administrative regulations, or ordinances. Moreover, since constitutional provisions generally occupy the highest position in the hierarchy of norms within a domestic legal system, decisions of courts in the position of final arbiter of constitutional claims can be overruled only by a constitutional amendment or by their own subsequent decision. Finally, constitutional rights claims often raise issues that are highly controversial politically3. These features appear particularly clear in the case of the Constitution of Estonia, whose § 152 second paragraph states that "The Supreme Court shall declare invalid any law or other legislation that is in conflict with the provisions and spirit of the Constitution.". While specifying that laws might infringe the Constitution whenever conflicting with its 'spirit' not less than with its 'provisions', the Estonian Constitution presupposes the literal rule's insufficiency for a correct approach to constitutional interpretation. The 'spirit' of the Constitution is, in fact, unlikely to be encapsulated in single words, and even in the whole text of the Constitution. It can, rather, be apprehended through adaptation of the text to the diverse circumstances imposed with the passage of time. Rather than requiring a predetermined meaning, the 'spirit' of the Constitution admits shifts of meaning. This is precisely the kind of challenge that constitutional interpretation is expected to meet. It is also a challenge that contemporary constitutional texts are suited for, due to their relatively indeterminate language. It is that language which gives a constitution the capacity to survive those changes that may bring about reform of the ordinary legislation.
On the other hand, constitutional rights claims raise politically controversial issues to the extent that constitutions mirror pluralistic societies and at the same time posit the premises for their own free development. As Michelman has put it, "The legal form of plurality is indeterminacy - the susceptibility of the received body of normative material to a plurality of interpretative distillations, pointing toward differing resolutions of pending cases and, through them, toward differing normative futures." 4
The fact that the literal rule and recourse to the intent of the Framers are frequently insufficient in guiding constitutional interpretation does not mean that courts may set aside those criteria whenever they wish. On the contrary, courts rely on other criteria only after having demonstrated that the language plainly emerging from the text or from the intentions of its authors is insufficient for resolving the case. This is not merely a recommendation. It also depicts a current judicial practice. Although 'activism' is sometimes seen as failure to apply a rule at hand in accordance with its meaning, or applying a rule that has no warrant in the existing legal materials 5 , it has been convincingly replied that "understood in these terms, an account of 'activism' is unlikely to be of much assistance. Few judges will knowingly fail to apply a rule in accordance with its meaning, or rely on a rule which has no legal warrant as they see it"6.
These features appear sufficiently consolidated both in the American and in the European system of constitutional justice. If this is so, contrasting judges who apply their own moral values with judges following the plain meaning of the words in the law, as many commentators do, appears to be a 'false dichotomy'7. The activism/restraint dichotomy presupposes instead that the language that judges, and constitutional courts in particular, have to contend with is often indeterminate. And the dichotomy exists in the attitude toward that language. The activist approach tends more easily than the restraint-based approach to rely on criteria, first and foremost the teleological, that are not directly grounded in the text. The above-mentioned dichotomy is therefore a matter of degree, being apprehended in quantitative rather than in qualitative terms.
Once definition is provided in such terms, it remains to be seen why judges should adopt an activist or instead a restraint-based approach.
According to Posner, three approaches may lie behind doctrines of restraint: deference, reticence, and prudence. The deferential approach consists in avoiding contrasts with the decisions of other branches of government, the reticent approach is founded on the assumption that judges should not be making policy decisions, and the prudential approach is suggested on the grounds that judges should avoid making decisions that may well impair their capacity to make other decisions8.
The first two approaches appear directly related to the issue of the legitimacy of judicial decisions in a democratic system. The third one as well is related to that issue, albeit only indirectly, prudence being suggested in order to avoid decisions that would incur political reprisals interfering with the judiciary's ability to make other decisions9. The approaches suggested by Posner for justifying restraint appear therefore as diverse expressions of the legitimacy issue.
In the American literature, the most important accounting of that issue is in the work of Alexander Bickel. "The root difficulty", wrote Bickel, "is that judicial review is a counter-majoritarian force in our system", since "when the Supreme Court...