Judicial Activism From a Participant's and From an Observer's Point of View at Law & Society Blog

Judicial Activism From a Participant’s and From an Observer’s Point of View

Published by Hanno Kaiser September 27th, 2005 in Jurisprudence

I agree with Manfred that critical features of the formalism v. realism debate should be recast in terms of the distinction between first-order and second-order observations of the law, as previously explained in this post. But I don’t think that a decision must necessarily be unlawful from an internal point of view in order to be considered activist from an external point of view. There are no necessary semantic ties between the internal and the external perspective. Participant and observer are bound by their own choices of relevant binary codes (e.g., lawful/unlawful and power/opposition) but they are not bound to respect or to even take into account any other system’s codes. Moreover, not every observation of the legal system by the political system (or vice versa) is an instance of second order observation. Rather, an observation is of second order only if the object of the observation is another system’s blind spot, that is, it’s constitutive difference or its code.

Judicial activism, therefore, means something very different if viewed from an internal and an external perspective. For the participant in the legal system, judicial activism is a decision that makes new law by overruling precedent, or expands the reach of a doctrine (e.g., applying the equal protection clause to age discrimination), or declares a previously unrecognized set of facts as relevant to the legal system (e.g., decisions of foreign courts, economics textbooks, sociological findings). Whether such activism is defensible depends on criteria internal to the legal system. For the observer of the legal system, judicial activism is primarily a question of how much the legal system interferes with other systems, e.g., how often the court strikes down various laws. Whether such activism is defensible depends on criteria employed by the observing system. Both perspectives are logically independent. They represent two views from two different vantage points of two different, yet related events.