I. “Judicial activism” is an expression widely used in popular discourse since its
introduction in 1947 in a lay magazine by Arthur Schlesinger Jr., who used the term
pejoratively to describe a tendency within the US Supreme Court. Although the
phrase acquired currency among public opinion both in America and Europe, its
translation into a proper legal concept is no easy task, if at all possible or desirable.
Several contributors to this book undertake that task and believe that the concept is
intelligible and useful.
Notwithstanding the conceptual concerns that run through the volume, the
phrase is mostly a pretext for reflection on judicial practice in the European and
American contexts, both arguably characterized in these last decades by the
introduction of novel normative claims and even policies by judges. That within
supposed exercises of practical reason departing from conventional legal method—
or legal method as conventionally understood. An understanding of judicial
activism around these tenets can be gained from the contributions to this volume.
II. There is inevitably a central question deserving the attention of the different
contributors, which concerns the degree in which judicial exercises in practical
reasoning may amount to forms of judicial usurpation of the legislative function by
courts. Moreover, different views as to the nature and scope of legal reasoning lead
to different degrees of tolerance regarding what should be admissible to courts.
Massimo La Torre, on the one side, and Lawrence Alexander, on the other, find
themselves on opposite sides of the spectrum. La Torre, rejecting the platonic noble
dream (or nightmare, in his view) of judicial reasoning as a matter of mere
acknowledgment or cognition, defends that the main rationale of judicial decisions
must be understood as argumentative and interpretative, implying a thorough
involvement of the judge in practical reasoning. Contrarily, Alexander looks
unfavorably at the exercise of what he names as “first-order practical reason” by
judges.