Judicial Activism as an Unwritten Source of Law? A Normative Approach
Judicial Activism as an Unwritten Source of Law? A Normative Approach

Summary/Abstract: The article examines the criteria for recognising judicial decisions as an unwritten source of law. These criteria are considered from a normative perspective, focusing on the question of legitimate judicial activism. The author identifies activism as a situation in which, for an individual familiar with the legal culture and engaged in good-faith interpretation, it becomes clear that the judge has exceeded the institutional role assigned to him or her within that culture. The article outlines types of activism that are not legitimate from the point of view of communicative ethics and established criteria of political legitimacy. It is argued that such illegitimate activism consists, in particular, of employing language that articulates fundamental rights in a sense divergent from that traditionally accepted, and in introducing changes to the institutional structure and symbolic identity of a given political community. By contrast, reliance on the moral values and established legal principles recognized within a given community is presented as a form of necessary activism, particularly in the face of contemporary hyperinflation and the internal contradictions of the discourse on fundamental rights discourse.

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