The constant tug of war between the activist and constructivist judges is and continues to be more of a philosophical concern as opposed to a judicial one. With the apparent difference in the two, it is safe to argue that they have brought about a new field in judicial studies coined as ‘judicial philosophy’. Concerning activist judges, they often find themselves in unique situations where their personal opinions affect the implementation of the law. Throughout time, activist judges bear the title of ‘change makers’ being key change agents in societal concerns. One such case is the Supreme Court’s landmark Brown v. Board of Education of Topeka Ruling of 1954 that declared racial segregation in public schools to be unconstitutional. The judiciary at this time overturned the precedent to protect minority rights. In as much as the law embodies the preceding judgment, Alexander Hamilton pointed out the notion of judicial discretion in which he argued that it belonged to judges. This in itself is a dilemma in that a judge is under obligation to observe the rule of law but there could be situations in which the law infringes upon the basic rights of an individual.
An argument among constructivist judges is that judges lack in training in interpreting the law. They argue that since judicial activism involves overturning a precedent, it can violate the principle of stare decisis that requires courts to follow precedent. In this line, activist judges could make decisions aiming to protect the minority but their decision could ultimately affect the law and present unexpected outcomes that hinder the execution of justice. The ethical dilemma a constructivist judge is likely to face is a clash between the times and the spirit of the constitution. This follows that they are instances when a judge has to draw from their moral compass to prevent inevitable harm to others
Delegate your assignment to our experts and they will do the rest.
2.
Undue influence is often an unfortunate circumstance in legislation and could easily translate into a mistrial or a hung jury. Following overhearing the prosecutor’s comment, I would excuse myself from the jury following prejudice over the outcome of the trial. I would communicate with the judge in this case to avoid spreading the prejudiced information to the other jury members. Following the sensitivity of the case, the information would impair my objectivity and incline to the guilty plea.
References
Brandeis University. (2010). International Center for Ethics, Justice and Public Life. Print.
