On Why "Judicial Activism" Is an Empty Nonsense
Monday, July 20, 2009 at 1:15AM
Sean Wilson in Legal Theory, e-mail discussion

(sent to lawcourts)

... here's the problem. The term "activism" is a language game which shares only one thing in common: it has facile grammar and is largely deployed for rhetorical purposes by people not wanting to say very meaningful things about justice casuistry. You cannot repair these problems by counting things and throwing them in Stata. Neither good art critics or scientists would begin any work from the starting point of "who's the activist?"  

Another thing that is not understood here is that the term "activism" frequently says says something normative about "law," but does so silently. The term can specifically imply that a person is licentious or aggressive with justification. However, if you ever ask the person what is proper legal justification or what makes for "non-activist" legal justification, it amounts to something not defensible in philosophy of law. The trouble with quantitative political scientists and the lawyers who deploy this vocabulary, therefore,  is that they take are taking poor philosophic positions. And when they do this, they quite often don't realize it while wrongly believing that philosophy is either art or opinion. The political scientists would be even worse off if they put forth these views while believing their work was "science." You cannot make science out of a poor grammar.

It would be very helpful if people using these terms could do one small favor. When calling someone an activist, an attitude-driven judge, a policy judge, an outcome-focused judge -- would you please give examples of what judging would look like if this (a) wasn't so; and (b) why the counterfactual makes for better judging/ law. If we could have these criteria explicit, we would soon find no reason to accept the framework, let alone count anything for a good Stata piece.


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