Abstract

ETCHEVERRY, Juan B.. Judicial Formalism, Activism, and Discretion. Díkaion [online]. 2020, vol.29, n.2, pp.336-351.  Epub Apr 12, 2021. ISSN 0120-8942.  https://doi.org/10.5294/dika.2020.29.2.1.

This article seeks to explain why the terms judicial “formalism” and “activism” are often used as antagonistic ways of discrediting judicial activity. Thus, it will be necessary to clarify that they have different meanings in diverse legal-professional contexts and even carry more than one meaning in the same context. However, this time we will focus on elucidating their pejorative sense. Then, we will argue that both terms, in some cases, are belittling because they identify ways of understanding the judicial function that do not take two essential elements-generally considered valuable-of current Western legal systems seriously: fundamental rights and democratic laws. Finally, we propose an alternative model to understand judicial activity compatible with these elements.

Keywords : Legal technicality; judicial decisionism; judicial arbitrariness; constitutional review; judicial determination of law.

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