Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

THE PHILOSOPHY OF JUDICIAL ACTIVISM

Nnamdi Ebo 2 241x300 JusticeLawyer Zone  | By Nnamdi Ebo.

 Origin of the term:

The term “judicial activism” has its origin in the U.S. and was introduced into the legal lexicon by Arthur Schlesinger Jr.114 in a January 1947 Fortune magazine article titled “The Supreme Court: 1947.”115 Kmiec (a writer) wrote refering to the U.S. Supreme Court as follows:

“Schlesinger’s article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the “Judicial Activists” and Justices Frankfurter, Jackson, and Burton as the “Champions of Self Restraint.” Justice Reed and Chief Justice Vinson comprised a middle group”.

Keenan D. Kmiec116

Judicial activism (1949): is a judicial interpretation of (for instance) the 1999 Constitution of the Federal Republic of Nigeria – holding philosophically that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court of the Federation). For judicial restraint, see Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0847685314. It is more or less a broad interpretation of the constitution by judges and justices of the high courts and appellate courts in Nigeria.

Interpretation itself is an explanation of something that is not immediately obvious; e.g. a statute, edict and laws are subject to many interpretations. Judicial activism is also behavior wherein a judge departs from judicial precedent to pursue a public policy or a judgment that the court feels is fair, given the facts of the case. Many legal writers and jurists regard judicial activism as a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually, with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.

As a philosophy, judicial activism is a judge’s personal belief about how to deal with judicial questions that come before him in court. Most decisions of this nature concern public policy and individual beliefs – most times based on notions of right and wrong which weigh in heavily in a judge’s decision-making mechanism. The spirit of the times and the needs of the nation can influence the philosophy of judicial activism. Precedents are supposed to be followed in order to maintain predictability in the legal system. One of the major problems in the early centuries was to produce a system that was certain in its operation and predictable in its outcomes.

Too many judges were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a standardized procedure slowly emerged, based on a system termed stare decisis. Thus, the ratio decidendi of each case will bind future cases on the same generic set of facts both horizontally and vertically. The highest appellate court in the UK is the Supreme Court of the United Kingdom and its decisions are binding on every other court in the hierarchy which is obliged to apply its rulings as the law of the land. The Court of Appeal binds the lower courts, and so on.

However, some judges desirous of charting a new course delve into new approaches to decision-making in court. By this, the court system is used in advancing legality through proffering answers to legal questions based on the notion of right and wrong – at times good and evil. Judicial precedents are supposed to be followed – as a matter of legal method or the judicial way of doing things. This is not always the case as some forward-looking judges deviate from legal convention (as it were), more especially where the precedent in question is old (at times very old). Suffice it to say that the older a precedent is, the more likely it will be revered by jurists and members of the bench as a whole.

The age of a judicial precedent presupposes that it has been cited and employed in decisions by several judges overtime. As a conservative profession or calling, there is this time-worn attitude not to upset the applecart. Even Lord Denning deviated once in a while – he charted new terrain in the English legal system with his activism – he failed to take sides with the majority at times and in the end became one of the best known and respected judicial officers of the English bench.

Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections. Some philosophers consider law as a social contract with the people.

The times and situations should guide our idea about law. It shouldn’t be too abstract. It is meant to guide and protect the people. Old maxims should be discarded when and where necessary in the interest of public policy. Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, was under full attack by the late 19th century. Oliver Wendell Holmes, Jr. in his famous article, “The Path of the Law,” 10 Harvard L.Rev. 457, 469 (1897), commented, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Justice Holmes noted that study of maxims might be sufficient for “the man of the present,” but “the man of the future is the man of statistics and the master of economics.” In an 1880 lecture at Harvard, he noted “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

“But what, after all, is a law? […] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. […] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills.”

 – Jean-Jacques Rousseau, The Social Contract, II, 6.

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“If to resolve the dispute the court must create a new rule or modify an old one, that is law creation. Judges defending themselves from accusations of judicial activism sometimes say they do not make law, they only apply it. […] The qualification is important, but the fact remains that judges make, and do not apply law.”

Richard A. Posner, The Federal Courts: Crisis and Reform 3 (1985).

The most famous example of judicial activism to date occurred in a common law country, the U.S. Bush v. Gore – The landmark United States Supreme Court case between the major-party candidates in the 2000 presidential election; Texas Governor George W. Bush of the Republican Party and U.S. Vice President Al Gore of the Democratic Party.

Bush v. Gore, 531 U.S. 98 (2000), is the landmark United States Supreme Court decision that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), and only three days earlier, had preliminarily halted the recount that was occurring in Florida. In a per curiam decision, the Court ruled that the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Court also ruled that no alternative method could be established within the time limits set by the State of Florida. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature. The decision allowed Florida Secretary of State Katherine Harris’s previous certification of George W. Bush as the winner of Florida’s electoral votes to stand. Florida’s 25 electoral votes gave Bush, the Republican candidate, 271 electoral votes, defeating Democratic candidate Al Gore, who ended up with 266 electoral votes (with one D.C. elector abstaining). A majority (270) of the electoral votes is needed to win the Presidency or Vice Presidency in the Electoral College. The U.S. Supreme Court justices voted along ideological lines, 5-4, to halt the recount of ballots in Florida and, in effect, elected Bush as the 43rd President of the U.S.

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End Notes
  1. 114. Arthur Meier Schlesinger Jr. (1917–2007) was an American historian and social critic. A Pulitzer Prize winner, Schlesinger served as special assistant and “court historian” to U.S. President F. Kennedy from 1961 to 1963.
  2. 115. Keenan D. Kmiec in a 2004 California Law Review article
  3. 116. Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism,” 92 L. Rev. 1441, 1447 (2004)]

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Legal Method . Book Cover 202x300 JusticeCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved

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