Judicial Restraint

7 Key excerpts on "Judicial Restraint"

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  Power of Persuasion

  Essays by a Very Public Lawyer

  • Louis Blom-Cooper(Author)
  • 2015(Publication Date)
  • Hart Publishing

    (Publisher)

  Judicial Restraint Judicial Restraint is one of those familiar phrases that is full of mean-ing but in practice determines too little substance. It has its place, 21 Lord Devlin, ‘Judges as Lawmakers’ (1976) 37 Modern Law Review 1. The Scope of Judicial Review and the Rule of Law 23 but needs to be used wisely. It depends on the emanation of the precise sense: does it come from a judge to explain his attitude to parliamentary or governmental action? Or is it implicit in a histori-cal attitude towards judicial adjudication on a statutory provision or executive action that insists on the essence of social policy? Commonly enough there is a recognition of the task of Parliament and the Executives in tandem with the courts, to govern the coun-try. To do otherwise is to proceed to a state of unwarrantable intru-sion by the courts into the political field, and thereby a usurpation of the function of Parliament. But the popularism of that eminence is, I venture to think, no longer the proper view of their relation-ship. Nowadays, increasingly frequently, the emphasis is on ‘the relative institutional competence’, a phrase that has more creative possibilities than the ‘separation of powers’. It has been best described by Lord Bingham in A v Secretary of the State for the Home Department : The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.

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  Using International Law in Domestic Courts

  • Shaheed Fatima KC(Author)
  • 2005(Publication Date)
  • Hart Publishing

    (Publisher)

  PART IV Judicial Restraint, Act of State and Customary International Law 12 Judicial Restraint and Act of State (1) Judicial Restraint 12.1. Courts have generally avoided adjudicating on matters arising from transactions of foreign states or inter-state issues. This policy of avoidance has become known as the principle of Judicial Restraint. A modern description of the principle of Judicial Restraint has been given by Lord Wilberforce: ‘[T]he essential question is whether . . . there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. Though I would pre-fer to avoid argument on terminology, it seems desirable to con-sider this principle, if existing, not as a variety of “act of state” but one for Judicial Restraint or abstention . . . In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.’( Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888 (HL), 931F–932B) 12.2. The operation of Judicial Restraint is triggered by facts relating to ‘transactions of foreign states’ or ‘inter-state issues’ [§ 12.2.1], for example the interpretation of or adjudication upon treaties which are unincorporated in domestic law [§§ 8.6–8.7]. Judicial Restraint requires a court to exercise its discretion on whether it is compe-tent to decide the issues raised and withdraw from adjudication where it determines that it is not. Withdrawal will generally occur where the issues are incapable of being judged by ‘judicial or man-ageable standards’ [§ 12.2.1] ( cf where there is an alleged violation of fundamental human rights or a breach of a clearly established rule of international law [§§ 12.5–12.9]).

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  Principled Judicial Restraint: A Case Against Activism

  A Case Against Activism

  • Jerold Waltman(Author)
  • 2015(Publication Date)
  • Palgrave Pivot

    (Publisher)

  4 A Constitutional Theory of Judicial Restraint Abstract: This chapter develops an intellectual framework that will support principled Judicial Restraint. It contains two elements. The first is an elaboration of the idea of positive constitutionalism. The Constitution is not primarily concerned with individual liberty from government. Rather, it is an instrument of government, designed to maximize liberty in all its aspects. Government is given the power to address public problems in whatever guise they arise, with liberty guaranteed chiefly by checks on how government exercises power. The second was best articulated by James B. Thayer, when he argued that the issue before the Supreme Court in a case involving a federal statute is not whether the justices think it is constitutional, but whether a reasonable argument can be constructed that it is constitutional. Waltman, Jerold. Principled Judicial Restraint: A Case Against Activism. New York: Palgrave Macmillan, 2015. DOI : 10.1057/9781137486967.0006. The maladies of judicial activism The difficulties that judicial activism—especially the stentorian form that it has taken under the current Court—brings to our political system are numerous. The first is that, as an institution, courts are ill-designed to make public policy, which produces a deleterious effect on the texture of many of our public policies. 1 To begin with, the mechanism of judicial decision is a case of litigant A versus litigant B. Consequently, courts make public policy by erecting general rules when deciding a case. And, of necessity, they decide on the level of generality for the rule they formulate. But there is no guarantee, in fact it is highly unlikely, that the case in front of the court is typical of the class of situations to which the rule will apply

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  The Obama Presidency

  Appraisals and Prospects

  • Bert A. Rockman, Andrew Rudalevige, Colin Campbell, Bert A. Rockman, Andrew C. Rudalevige, Colin Campbell(Authors)
  • 2011(Publication Date)
  • CQ Press

    (Publisher)

  Many of those precedents have taken firm hold within the American political system, and no longer require exten-sive litigation efforts in their defense. A third explanation is perhaps the most likely: that Barack Obama’s “skepti-cism about court-ordered change” may actually be driving him to look elsewhere obama and the law: Judicial Restraint at the crossroads 2 2 5 as a matter of principle. 7 Principles of “Judicial Restraint” compel courts to defer to the policy decisions made by politically accountable government institutions. In the short term, where one stands on Judicial Restraint usually depends on what one stands to gain. Thus as a concept, Judicial Restraint is normally attractive to all those who agree with the decisions of the democratically elected legislatures and publicly accountable executives that are currently in power. During the 1920 s and early 1930 s, Judicial Restraint was the siren call of liberals frustrated with the court’s will-ingness at that time to intervene against socially progressive legislation, including large chunks of the New Deal. Yet when the Warren Court revolution reached its peak in the 1960 s, conservatives became the latest apostles of Judicial Restraint, celebrating the decisions made by state officials and state legislatures to limit defen-dants’ rights and social privacy protections. During the first part of the twenty-first century, politically active conservatives— most of whom affiliate with the Republican Party—have offered some notable contradictions in their approach to the question of Judicial Restraint.

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  Restraint in International Politics

  • Brent J. Steele(Author)
  • 2019(Publication Date)
  • Cambridge University Press

    (Publisher)

  It does this by considering international structure through four well-known accounts of international politics in the works of Robert Cox (1981; 1983), Daniel Deudney (2007), Laura Sjoberg (2012; 2013), and Kenneth Waltz (1979; Sagan, Waltz, and Betts 2007). From this the chapter reviews forms of restraint in IR theory. While these understandings are vital to build a comprehensive account of restraint in global politics, they rest largely within a liberal-rationalist frame that reifies the nation-state and ignores some of the historical conditions that incentivize and overwhelm such restraint. Predicting that restraint will be and is practiced more frequently by liberal democ- racies, these studies overlook some of the rare but significant moments when such communities narrate against, and overwhelm, restraint in their policies, a point I explore in the following chapters. Restraint in International Relations What is restraint? Again, recall my definition proposed earlier, and used throughout this book – restraint is the going against or resisting something we would otherwise expect to prevail. And yet restraint is oftentimes used interchangeably with the word “constraint.” While their meanings as intended by authors may be similar, consulting their definitions reveals two similar concepts that still contain substantive differences. Constraint is defined variously as “a limitation or restriction,” or the “inhibition of relations with people.” 3 Its origins are supposedly from the Middle English, related to “coercion.” Elsewhere it is articulated as “repression” of the self and others.

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  The Judge in a Democracy

  • Aharon Barak(Author)
  • 2009(Publication Date)
  • Princeton University Press

    (Publisher)

  Self-restraint encompasses the opposite qualities. I define self-restraint as follows: it is the judicial tendency—conscious or unconscious—to achieve the proper balance between conflicting social values by preserving existing law rather than creating new law. It finds expression in a judge’s reluctance to invalidate a legal policy that was determined in the past. The self-restrained judge generally achieves his goals using existing judicial means.

  Comprehensiveness

  My definition of activism and self-restraint is comprehensive. It extends to all branches of law. I characterize as activist or restrained not just decisions in public law (addressing relations between the state and individual rights) but also decisions in private law.

  The Problem of Judicial Legitimacy

  Activism and self-restraint operate within the bounds of judicial legitimacy. I therefore do not define judicial activism as changing the law or creating new law in every case and in all circumstances (whether legitimate or not). In some circumstances, changing the law is illegal, and no judge has the power to do so. Similarly, self-restraint does not mean preserving existing law in all circumstances (whether legitimate or not), because sometimes doing so will be illegal. The distinction between activism and self-restraint is one of degree, not kind. No judge is always activist, just as no judge always exercises self-restraint. If such a judge did exist, he would sometimes act against the law. My definition of activism and restraint applies only to legal activity. One should notice, of course, that activist judges are less influenced by considerations of security, certainty, preserving the status quo, and the institutional constraints. On the other hand, self-restrained judges accord significant weight to security, certainty, and preserving the status quo. They respect the institutional constraints that preserve existing law and prevent changes.

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  Judging Social Rights

  • Jeff King(Author)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  I refer to institutional ‘approaches’ because the general features of institutionalism actually lend support to two sharply conflicting views of the judge’s role. Restrictive institutionalists believe judges should act wherever possible with great restraint, rejecting a role for balancing, and preferring adherence to bright-line rules and containing the expansion of precedent. Contextual institutionalists, on the other hand, believe more in the promise of the judicial process and advocate a particular tool to address the problems of broad judicial discretion under conditions of lim- ited institutional competency – principles of restraint. If the principles of restraint embody the institutional considerations and can be workably incorporated into adjudication, they believe, the concerns can be met without rejecting the role of the courts foreseen in much contemporary public law adjudication. The contextual institutional approach is the general approach to judi- cial restraint that I advocate for the adjudication of constitutional social rights. Chapters 6–9 of this book set out in detail the four key principles of restraint that I believe can be given weight in adjudication. However, there are a number of prior questions about how such principles may be used in day-to-day adjudication, what should happen when they conflict, and how, practically speaking, they may be made a part of judging. These considerations need to be attended to before the analysis of the principles themselves can be carried out. II Formalist approaches There are three somewhat distinct models of Judicial Restraint, commonly or traditionally employed in English public law, that are premised on a formal- ist separation of powers between legislatures, the executive, and the courts: the distinctions between law and politics, principle and policy, and justicia- bility and non-justiciability. These models are marked by what H. L. A. Hart

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