Judicial Activism vs Judicial Restraint: Lessons for South Africa
Judicial activism is often contrasted with judicial restraint. But what is “judicial activism”? Does it have a place in an unequal society? Where does judicial activism end and judicial overreach begin? Where does judicial activism end and judicial abusive language begin?
What is “judicial restraint”? Where does judicial restraint end and “judicial abdication” begin? Is judicial restraint, judicial deference?
One of the panelists observes:
“Choosing not to see something in the record that is there, is a form of [judicial] activism. That is not [judicial] restraint.”
She also observes:
“At the end of the day, if what you want is to see your beliefs become the law, then it actually pretty much doesn’t matter what [evidence] comes before you [as a Judge].”
Is this a desirable form of judicial activism in South Africa?
These are some of the questions explored in this panel discussion. It is a discussion that the South African judiciary would do well to revisit.