Characteristics of Judicial Restraint and Judicial Activism
Characteristics judicial restraint (judicial restraint) places more emphasis on judicial institutions limiting themselves, so as not to interfere in the affairs of the authority of the legislature, executive and other institutions and drafters of laws and regulations. So as not to judge or make policies that are clearly not their authority. The approach of Judicial restraint assesses that judicial institutions are not the main actors in the superstructure-political relations. It prefers that the dominant role remains in institutions that reflect popular representation “for example, the executive and legislative”. As in the teachings of the theory of separation of powers (trias politica).
If viewed carefully, the approach of judicial restraint is divided into three categories. First, formalism is an approach that strictly states that judges only carry out the orders of the law and do not make laws. Second, process jurisprudence is the position of the judge clearly not entering the realm of the authority of the legislature or executive in making the decisions they make. Third, constitutional restraint, it is very difficult for judges to declare unconstitutional actions taken by the legislature or executive in making laws.
This approach tends to make judges shackled by the content contained in certain legal principles and doctrines, which in the end makes it difficult for judges to provide substantive justice that should be felt by society.
On the other hand, the approach of judicial activism (judicial activism). Is an approach taken by judges and judicial institutions to control or influence political and administrative institutions, both in the legislature and executive, in this case making policies and decisions faced by judicial institutions. Judicial activism tends to consider the court as a dominant subject in relations between institutions at the political superstructure level. It is also not uncommon for judges to tend to make legal rules (judges making law) based on the legal reasoning of their arguments in seeing or assessing cases concretely (in concreto). Judges who frequently use this approach are then known as activist judges.
Upon closer inspection, judicial activism aims to realize more progressive judicial decisions in addressing various concrete problems and issues that develop in society. However, it should be noted that using this approach in deciding cases is considered to create bias or subjectivity on the part of the judge, which will affect the socio-political life of the decision handed down.
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