Of all the research carried out on judicial systems throughout the world, the American contribution has distinguished itself for the depth of its analysis of judicial activism.
The discussion as to how far a judge can go in relation to the politics of a country goes back various centuries in the United States, practically to its foundation.
Our thesis proposes to study how this involvement of the judiciary in politics has affected American life. The work is organised around five basic arguments.
The first argument deals with the origins of judicial activism, and specifically how judicial activism arose from a fundamental misinterpretation of the Constitution. The second argument presents judicial activism as a rupture with the Constitution, and consequently also with the democratic spirit enshrined in the Constitution. Our third argument criticises the widely supported myth of the judicial role in the defence of minority rights. The fourth argument analyses the basic weakness of the judiciary when it tries to substitute for the will of the other two powers. And finally, in the fifth argument we show how the fundamental weakness of the judiciary is exposed when it, enters into conflict with the other powers. In the course of these arguments many other subsidiary criticism are introduced.
We do not expect the reader to be convinced of all the arguments presented in this thesis, particularly since a full treatment of each argument was not within the scope of the thesis. We hope however that it will serve to promote greater reflection on the role of the judiciary in the tripartite system of Government.
Given the enormous political transformations through which the world is passing, it is the responsbility of thinkers to contribute to the improvement of the democratic institutions within this emerging new order. Our aim, in however modest a way, is precisely to contribute to this process.
The discussion as to how far a judge can go in relation to the politics of a country goes back various centuries in the United States, practically to its foundation.
Our thesis proposes to study how this involvement of the judiciary in politics has affected American life. The work is organised around five basic arguments.
The first argument deals with the origins of judicial activism, and specifically how judicial activism arose from a fundamental misinterpretation of the Constitution. The second argument presents judicial activism as a rupture with the Constitution, and consequently also with the democratic spirit enshrined in the Constitution. Our third argument criticises the widely supported myth of the judicial role in the defence of minority rights. The fourth argument analyses the basic weakness of the judiciary when it tries to substitute for the will of the other two powers. And finally, in the fifth argument we show how the fundamental weakness of the judiciary is exposed when it, enters into conflict with the other powers. In the course of these arguments many other subsidiary criticism are introduced.
We do not expect the reader to be convinced of all the arguments presented in this thesis, particularly since a full treatment of each argument was not within the scope of the thesis. We hope however that it will serve to promote greater reflection on the role of the judiciary in the tripartite system of Government.
Given the enormous political transformations through which the world is passing, it is the responsbility of thinkers to contribute to the improvement of the democratic institutions within this emerging new order. Our aim, in however modest a way, is precisely to contribute to this process.
