Defining Legitimacy: A Hartian Conception of Judicial Activism

Abstract

<p>Democracies in the Western world are caught in a politically charged debate over the legitimacy of judicial actions that alter, negate, or deny force and effect to law that does not seem to be progressing. In this thesis, I argue that in order to make any serious progress towards resolution, we need to clarify our terms: what criteria determine when adjudicative officials act with legitimacy? In order to determine the criteria of legitimacy, we need to situate judicial activism within legal theory. I utilize Hart's descriptive-theoretical account of law as developed in The Concept of Law to define the terms of judicial activism. I distinguish first between criteria of moral and legal legitimacy. I later discern a third category of legitimacy - 'institutional'. To move forward on the issue of judicial activism we need to be acutely aware of the different criteria necessary to establish grounds for legitimate judicial behavior. Each category of legitimacy carries with it a different set of justifying criteria. I propose that at the very heart of the confusion over judicial activism is a failure to recognize that there are different grounds for legitimacy. Some argue about legal legitimacy, others moral or institutional. Crucially, few theorists ever bother to distinguish the existence of one set of criteria from another. Thus, the debates about judicial activism are plagued with ambiguities. While this thesis does not resolve the issue about whether judicial activism is justifiable, it does establish the terms that could lead to resolution of the issue. In short, it defines the types of arguments that theorists would need to advance in order to establish if activist behavior by adjudicative officials is morally, legally, or institutionally legitimate.</p>