Chapter

Judicial Restraint and Activism Considered

Aruna Sathanapally

in Beyond Disagreement

Published in print October 2012 | ISBN: 9780199669301
Published online January 2013 | e-ISBN: 9780191744648 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199669301.003.0006
Judicial Restraint and Activism Considered

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Open remedies are an exercise in judicial restraint of a particular variety. It has been suggested that weaker remedial powers may allow for stronger rights, that is, more robust standards of what human rights principles require. On the other hand, judges may be reluctant to step outside their traditional role and employ a seeming political tool of persuasion. 5 carefully analyses the jurisprudence in relation to two potential areas of judicial activism (or restraint) with declarations of incompatibility (DOIs). The first is the use of DOIs to make broad versus narrow rulings, and the second is the development of a municipal jurisprudence of human rights. This chapter considers the pressures that may face courts in their use of DOIs, as well as the implications of the judicial attitude to DOIs for the role left to political branches.

Keywords: judicial activism; restraint; narrow rulings; minimalism; expository justice; Section 2 Human Rights Act; European Court of Human Rights; mirror principle; Strasbourg jurisprudence

Chapter.  13382 words. 

Subjects: Human Rights and Immigration

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