Activist Judges

(or what I learned in school this semester...)

I have been studying comparative law and my professor is fond of saying that he wishes somebody would tell the President that when he rails against activist judges, he really sounds very French! He makes an interesting point.

The French (civil law) and American (common law) legal systems were both designed with a “balance of power” in mind to provide protection against the abuses of the pre-revolutionary system. But different historical experiences shaped those fears, and thus the new systems they helped create.

In pre-revolutionary France the parlements were overly powerful – serving both judicial and quasi-legislative functions, and were identified with the landed aristocracy. The Revolution was in part a reaction against the parlements. Thus the post-Revolutionary Napoleonic Code was designed to prevent such abuses by an overly powerful judiciary.

In the American context, in contrast, the danger which the system was designed to guard against was an overly powerful executive. In the common law experience judges provided individuals with defense against the state. Thus a powerful judiciary provided a safety-check against the executive – judge made law is an integral part of the common law system, designed to protect people. In other words, activist judges are the very basis of our judicial system.

It is in France that judicial activism is inherently feared and thus systemically prevented through a firm reliance on codes and legislative supremacy. Judicial activism is very American! :)