Judicial activism. Its origins and reception in the national doctrine

Abstract

“Judicial activism" is a concept imported by the local doctrinaires from the United States where it originated and has been disseminated with multiple meanings since its appearance in the mid-1940s. The term was used to describe the conduct of the U.S. Supreme Court and gradually acquired a pejorative content by referring to an alleged excess in the role assigned to the courts on the doctrine of the theory of "judicial self-restraint", strongly entrenched as an applicable criterion to examine the conduct of judges. Its reception in Argentine doctrine began in the eighties and its use diversified, producing a resignification of its original content, especially linked to the doctrine of the judicial declaration of the unconstitutionality of laws. The article seeks to identify the different contexts of its use by the authors and postulates that it has been established -since the constitutional reform of 1994- as a normative term that imposes on judges a conduct aimed at making the application of human rights operative, detached from considerations based on a traditional system that proposes to take into account the structure of the division of powers.