Between Nightmare and Noble Dream: Judicial Activism and Legal Theory

Abstract

In order to discuss and understand judicial acts and role we should take into account three dimensions or point of views. (i) The first is how we conceive the constitution of a polity. (ii) The second is what we mean by judicial reasoning, that is, how we believe judges could and should reason in arriving at their decisions. (iii) And the third one is the more philosophical view of what law‘s nature is. We will get different results, we will assess judges’ “activity” and “activism” in a different way, according to the stance we take on each of these three points. The paper tries to separately follow these three paths that however often cross each other. This implies considering the way legal theory conceptualizes its own traditional object, the concept of law, necessarily connected to legal reasoning, something that cannot be denied by any—however refined, elaborated and astute—philosophical external point of view. A theory of law as a practice (and nor as a platonic “nature” or “essence”) is at the same time, or implies, or derives from, a theory of adjudication. This is also why judicial activism is much more than a contingent issue for consideration and research.