The Judge as the Guardian of the Rule of Law: An Essay on the Rights-Oriented Approach to Judicial Activism

Two categories of the judicial role in political society can be separated: the activist judge and the self-restrained judge. The activist judge utilizes the judicial office to realize social ideals such as protecting people's rights and social justice. On the other hand, the self-restrained judge tries as much as possible to apply the law with a textual approach and avoids activism. The article provides a theoretical framework for understanding judicial activism. Judicial activism has significant risks and may harm legal values such as the rule of law, separation of powers, and democracy. Despite all this, the article argues that we can talk about legitimate judicial activism under certain conditions. So we must think about the activism's direction and political context. The article shows that it is justified for judges to resist the "lawmaker's war against the rule of law" and actively protect people's rights against the encroachments of the ruling system..