Theoretical Foundations for Judicial Activism: Some Jurisprudential Perspectives

Abstract

Judicial activism has emerged as one of the most debated themes in contemporary jurisprudence, reflecting tensions between judicial restraint and the judiciary’s evolving responsibility to protect rights, fill legislative gaps, and respond to social transformation. This paper explores the theoretical foundations of judicial activism through the lens of four major schools of legal thought: natural law, legal positivism, sociological jurisprudence, and realism. From a natural law perspective, judicial activism gains legitimacy by grounding legal interpretation in morality and the pursuit of justice, particularly where legislative inertia undermines rights protection. In contrast, strict positivism resists activism by prioritizing the sovereign command, yet even withinAustin and Hart’s formulations, space is found for judicial creativity through the recognition of open-textured rules and penumbral areas of law. Sociological jurisprudence situates activism within the broader project of social engineering, encouraging judges to adapt legal rules to shifting economic, political, and social realities. Realism, meanwhile, most directly acknowledges the judicial role in shaping law, emphasizing the judiciary’s practical influence in transforming statutory texts into living norms. Methodologically, the paper employs a doctrinal approach,analyzing jurisprudential theories, judicial reasoning, and key cases to assess the scope andjustification of judicial activism in the protection of human rights and the domestication of international legal obligations. The study concludes that judicial activism, when grounded in principle and institutional responsibility, is not an aberration but a vital judicial function, ensuring the law remains responsive to evolving societal demands and constitutional imperatives.