사법적극주의의 경험적 분석을 위한 이론적 고찰: 미국에서의 논의를 중심으로 비교 제도적 확장을 위하여 = A Theoretical Review of Empirical Analyses on Judicial Activism

다국어 초록 (Multilingual Abstract)

The political activism of the judiciary has become an extremely relevant issue in contemporary democratic regimes even though many believe that judicial policy making conflicts with the very essence of a democratic polity. This article is an effort to provide an plausible explanation for the degree of judicial activism. Although judicial activism is a multifaceted concept, this article conceives of judicial activism as the court`s tendency to expand its scope of power and role even if it falls in direct conflict with the legislative and/or executive branches. Having conceptualized judicial activism for operationalization, this study turns to several structural features associated with judicial activism, particularly focusing on judicial independence, political fragmentation, and public opinion. First, this research explains that the power of judicial review by independent judiciary is a necessary condition for judicial activism. Although independent judges will not always choose to substitute their own policy judgement for that of others, they are in a good position to assert themselves in policy-making against or in competition with the legislative and executive branches. Thus, while judicial independence does not assure judicial activism, it certainly increases the potential for it. But, judicial power is highly contingent on the acceptance of other policy-makers. The strategic approach suggests that judges who wishes to see their policy preferences realized have to make strategic calculations about the views of other colleagues on the bench, legislators, administrators, and other political actors. Second, this study argues that the role played by the judiciary depends on the general setting of the political system. If the lack of consolidated rules of the democratic game in a highly divided setting, more judicial activism is likely to occur. As social rifts become more severe, political polarization becomes more prominent. While no political group can gain electoral support enough to be a dominant ruling party or coalition, the court becomes perceived as the most reliable civil institution in the country. When legislative and executive powers are polarized, the court accumulates more institutional power. Thus, the political deadlock in a highly divided setting is likely to be the major structural stimulus for increasing judicial activism because the polarized setting allows judges to vote sincerely without constraints from the legislature and the executive. Third, this essay examines the influence of mass public attitudes on judicial performance. If citizens value judicial independence and regard respect for judicial rulings as important, a decision by elected officials to resist a judicial ruling may result in a loss of public support. The fear of such a public backlash can be a forceful inducement to implement judicial decisions faithfully. Therefore, because public support constitutes an important judicial resource, a concern about maintaining support for the court may influence judicial deliberations. Judges will be concerned to maintain the appearance of impartiality and consistency while, at the same time, being sensitive to prevailing public opinion.