Legal Literacy - This article provides an in-depth analysis highlighting expert views, concrete examples, and practical implications of judicial activism and judicial restraint.
Understanding the Dilemma of Judicial Activism and Judicial Restraint in the Constitutional Court
Logic and reasoning are the most important parts of building a good legal argument. Today, the dynamics of legal reasoning have developed with very diverse approaches. B. Arief Sidharta revealed that argumentation in legal reasoning is a systematic problematic thinking activity. As far as the author has observed in national media, one of the hot topics and debates among legal observers in Indonesia is the approach of judicial activism and judicial restraint carried out by judicial institutions. In particular, the Constitutional Court in deciding a case.
In simple terms, the approach of judicial activism or judicial restraint is a principle born and based on democracy from the legal tradition of the United States. Arthur Schlesinger defines judicial activism as a (judicial discretion) that arises due to the complexity of problems that must be resolved by the court without sufficient law (in the formal sense). Meanwhile, James B. Tahyer defines judicial restraint, as the highest principle of constitutional law theory. This principle rejects the position of the judiciary as the main institution in the political system in a country.
If examined from the above understanding, both approaches judicial activism or judicial restraint have their roots in democracy. It's just that there is a difference in emphasis between the two approaches. What and what are the differences between these approaches?
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