THE GOVERNMENT OF JUDGES: THE HISTORICAL DEVELOPMENT OF JUDICIAL LEGITIMACY AND ITS EFFECTS ON ACTIVISM AND RESTRAINT IN FRANCE AND THE UNITED STATES

The article examines the historical development of judicial legitimacy and its effects on activism and restraint in France and the United States by examining the active French sequestration of the constitutional review power and arguing that, as a result of this approach, the French constitutional j...

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Bibliographic Details
Published in:	The Journal of law in society Vol. 23; no. 2; p. 173
Main Author:	Maddox, Trace M
Format:	Journal Article
Language:	English
Published:	The Journal of Law in Society 22-12-2023
Subjects:	Comparative analysis Constitutional history Constitutional law Interpretation and construction Judicial activism Judicial restraint Judicial review Laws, regulations and rules Legitimacy of governments Separation of powers
Online Access:	Get full text
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Summary:	The article examines the historical development of judicial legitimacy and its effects on activism and restraint in France and the United States by examining the active French sequestration of the constitutional review power and arguing that, as a result of this approach, the French constitutional judge benefits from a greater legitimacy than his "generalist" American counterpart, allowing him to adopt a less deferential, more activist posture. It examines the concept of "legitimacy" and "activism" and adopts working definitions of those terms. It also examines the processes by which a judiciary develops legitimacy, and the ways in which these opposing attitudes shape the mechanisms and practice of constitutional review operating in each country today. The article concludes with a case study to illustrate the greater degree of activism that superior legitimacy permits the French constitutional judge.
ISSN:	1538-5876