Judicial Activism and Judicial Restraint in the Theory of the Evolutive Approach to Law

The history of law reflects the perpetual movement of doctrines, concepts, principles, and precedents, in the creation and implementation of which a special role belongs to the judge. The judge activates all these instruments through judicial functions such as argumentation and interpretation. In this process, judges seek to convey social reality by adapting the applicable legal act to the changing needs of society. The vitality of a legal norm is maintained by strengthening the interpretative model of justice, wherein an evolutive approach to law is realized. Such proactive activity, anticipating the legislature, must be effective and is directly connected with evolutive interpretation, which requires treating the interpreted legal act as a “living instrument” and interpreting it in light of contemporary requirements. Thus, a current legal space is formed, in which judicial practice, alongside legislation, plays a key role. The evolutive approach to law, expressed through interpretation, acts as a harbinger of legislative changes when the legislator adopts or develops the innovative approaches introduced by judges, reflecting the features of the time. In applying the evolutive approach, judges rely on two methods accompanying judicial activity: judicial activism and judicial restraint. The method of activism corresponds to the nature of the judiciary, which is primarily inclined to develop law and introduce innovations, responding to the need to consider social, political, and economic changes. Judicial independence is an essential precondition for judicial activism, which is proportionate to the state of society. However, inappropriate activism can harm judicial independence in terms of legal protection. A reasonable balance between judicial activism and judicial restraint—based on understanding the true role of the judiciary in the legal system, the continuous maintenance of its legitimacy, striving on the one hand for the stability of law and, on the other, for its development – is a necessary condition for the operation of the evolutive approach to law.