The core idea of positivism is the principle that human behavior in a community is the source of all law. This principle entails that, if anybody observes the behavior of all people in a community, then he or she may be able to discover all the laws of that community. It also entails that the law, which is rooted inside the social behavior of the people, bind judges, at least in some cases, and provide some crucial answers regarding the issues which came prior to the invention of court. In the modern setting of courts, the decision of judges on a case depends upon some crucial factors which have been theoretically described in different areas of Law and Justice. Factors that matter in a case while judgment procedure is going on, are based upon the theories of judicial activism and legal formalism.
Judicial Activism is a philosophy regarding judicial activities in the court. Judicial Activism posits that the decision of the courts should be made considering the broader implication in the social context even going beyond the constitutional words. The definition and some particular decisions of judicial activism are controversial issues in the political context. The questions that arise from judicial activism are closely related to the separation of authorities, statutory construction, and interpretation of the constitution (Barth, 2019).
On the other hand, Legal Formalism is a theory both descriptive and normative. In the descriptive aspect of legal formalism, formalists emphasize that judges should make decisions regarding a certain case, applying only those principles that are uncontroversial. Though different cases imply different principles, according to the beliefs of the formalists there is a basic straightforward logic behind these principles which can be discovered by the legal experts readily. To formalize those principles in a determinate and single system is the basic objective of formalism so that it could be used mechanically. This is formalism is known as "the official theory of judging". In the normative aspect of formalism, it is a view which implies that the decisions of judges should be based upon the implementation of the principles that are uncontroversial to the fact (Alberstein, Gabay & Bogoch, 2016).
According to a survey regarding the review of judicial practice of the past 30 years, Judicial Activism is based upon the decisions at different times made by Supreme Court (Alberstein, Gabay & Bogoch, 2018). Judicial Activism is defined by Black's Law Dictionary as a philosophy regarding the decision-making procedure in judicial practice which allows judges to apply their personal views about different factors including public policy, in order to proceed to their decision (Green & Roiphe, 2018).
According to the beliefs of the formalists, the relevant principles regarding the law of a certain area can be decided by the measurement of other laws of that area. Formalism is called as an "autonomous discipline", because of the beliefs of the formalists, that is, the only requirement of the judge is the law and the facts, while all the normative contexts including politics or morality should be irrelevant while the judgment procedure is going on. If judges simply apply the laws in an uncontroversial and mechanical way, they will be able to avoid any kind of criticism (Acharya, 2019).
Here is the basic difference between judicial activism and legal formalism. Because, judicial activism argues that the judges should use their personal views on the subject of their judgment considering the broader implications of the social aspect, while legal formalism emphasizes on the practice where judges should use only those laws and facts, relevant to that particular cases, in an uncontroversial and mechanical way, so that they can avoid any type of potential criticism regarding his or her judgment procedure and the decision. In other words, judicial activism implies that judges should have the capacity to make law while they are making their decision in a certain case, while legal formalism implies that the judges should follow only the existing laws relevant to that cases they are proceeding to make the decision (Lindquist, 2017).
Both are important aspects in the field of law and justice, which can not be denied. All the cases are not the same. The laws have been created by observing some social behaviors of the people. But all people in a society are not the same. Then the mode of their social behaviors is not the same as well (Amarini, 2019). Different cases are characterized by different features. So judges should use their personal views while making decisions for particular cases. Otherwise, the possibility of the issue of unfair judgment may not be declined. On the other hand, there are some pre-determined laws that are supposed to be followed by judges while making a decision in a particular case, but if judges apply their personal views over the registered laws, then they may be accused or criticized for this application (Goldsworthy, 2017).
Judgment should be based on the ethical and moral context instead of some registered constitutional words. Because, all the cases are different in their nature which varies individual to individual. The motive or the intention in the same case may be different from the previous cases. This is why, for a fair judgment, judges should use their personal views while making decisions (Coutinho, Torre & Smith, 2016). This is the concept of judicial independence. Judicial independence ins characterized by serving as a safeguard for the laws provided by the constitution, which prevents legislative and executive encroachment upon those laws. Judicial independence plays a crucial role as a foundation for laws and democracy as well. In a democratic country, all people deserve equal rights in society. These rights include the fair judgment of the court as well. Therefore, to make a fair decision, judges should have the capacity to make law (Nonet, Selznick & Kagan, 2017).
Society is a complex system where different kinds of social relationships do exist. All individuals in a society are not the same. Their social behavior is also different. To control their behavior and ensure the protection of other people the society uses the system of law and justice. In a court, judges analyze various cases regarding the offenses of the people and make decisions about their sentences. To make the judgment fair they should use their own view to the matter, instead of proceeding in a mechanical way.
Barth, M. (2019). The Different Sides of Judicial Activism at the European Court of Justice (Master's thesis).
Green, B. A., & Roiphe, R. (2018). Judicial Activism in Trial Courts. NYU Ann. Surv. Am. L., 74, 365.
Alberstein, M., Gabay-Egozi, L., & Bogoch, B. (2016). Formalisms of Law: The Fluctuating Paths of Legal Rhetoric. Available at SSRN 2921892.
Acharya, S. (2019). Formalism vs. Pragmatism in Legal Philosophy. Pragmatism in Legal Philosophy (July 19, 2019).
Alberstein, M., Gabay-Egozi, L., & Bogoch, B. (2018). Between Formalism and Discretion: Measuring Trends in Supreme Court Rhetoric. Hofstra L. Rev., 47, 1103.
Lindquist, S. A. (2017). Judicial activism in State Supreme Courts: institutional design and judicial behavior. Stan. L. & Pol'y Rev., 28, 61.
Goldsworthy, J. (2017). Tom Campbell on Judicial Activism. Austl. J. Leg. Phil., 42, 247.
Nonet, P., Selznick, P., & Kagan, R. A. (2017). Law and society in transition: Toward responsive law. Routledge.
Coutinho, L. P., La Torre, M., & Smith, S. D. (2016). JUDICIAL ACTIVISM. SPRINGER INTERNATIONAL PU.
Amarini, I. (2019). IMPLEMENTATION OF JUDICIAL ACTIVISM IN JUDGE’S DECISION. Jurnal Hukum dan Peradilan, 8(1), 21-38.
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