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9781441196316

What is Judicial Activism? A Debate on Legal and Political Philosophy

by ;
  • ISBN13:

    9781441196316

  • ISBN10:

    1441196315

  • Format: Paperback
  • Copyright: 2027-03-18
  • Publisher: Bloomsbury Academic
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Summary

A two-voice debate, this work offers a dispassionate discussion of the nature of judicial activism. Looking at what constitutes an "activist decision" - when a judge rules more in accordance with personal and political convictions than the law - this unique conversation delves into what exactly is judicial activism and why it is illegitimate. The two authors, one conservative and one liberal, seek to determine what is the scope of the legitimate discretion that judges have when deciding cases. After summarizing the controversy surrounding judicial activism, they look at this issue in relation to specific aspects of the law, including the use of moral principles, the purpose of the law, the interpretation of statutes, or the constitutionality of statutes. Each chapter begins with a question followed by non-polemical critiques and alternative answers. Arguments by key thinkers (Dworkin, Scalia) are also introduced and critiqued throughout the work. This balanced, non-technical treatment of a key issue in today's political debate will be an excellent introductory text for anyone studying American politics and political theory.

Author Biography

Jason Waller is Assistant Professor of Philosophy at Eastern Illinois University in Charleston, USA. Dr. Waller is the co-author, with Daniel Frank, of Routledge Philosophy Guidebook to Spinoza on Politics (2014) and has published articles in the British Journal for the History of Philosophy, Analysis and Metaphysics, and Linguistic and Philosophical Investigations.

Grant Sterling is Associate Professor of Philosophy at Eastern Illinois University in Charleston, USA. He is the author of Ethical Intuitionism and Its Critics (1994).

Table of Contents

Introduction: The Many Meanings of "Judicial Activism"
Part I: Foundational Issues
Chapter One: Identifying Paradigm Cases of "Judicial Activism"
Chapter Two: What is the Purpose of the Law?
Part II: "Judicial Activism" in Common and Statutory Law
Chapter Three: Do General Rules Decide Concrete Cases?
Chapter Four: What Role Should Moral Principles Play in the Application of Common and Statutory Law to Particular Cases?
Chapter Five: How Should Precedents Be Interpreted?
Chapter Six: Is There a Sharp Difference Between Applying the Law and Creating the Law?
Part III: "Judicial Activism" in Constitutional Law
Chapter Seven: Is the Constitution Dead or Alive?
Chapter Eight: How Do We Identify the "Unenumerated Rights" Protected by the Ninth Amendment of the U.S. Constitution?
Chapter Nine: What Role Should Stare Decisis Play In Constitutional Interpretation?
Appendix: Important Terms, Clauses, and Cases
Bibliography
Index

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