Judicial activism and the Rule of Law: an institutional paradox?

There are scholars who defend that judicial activism is a necessary mechanism to overcome the current social inequalities. According to them, the lack of political will and the institutional blockades, it is sufficient justification for judicial activism. However, there are no studies about the impact of judicial activism on the Rule of Law. For this reason, we are analyzing what is the relationship between judicial activism and the Rule of Law.

To answer this question, we set two objectives: 1) to classify activism according to its impact on the Rule of Law and 2) to explain the types of impact according to whether judicial activism consolidates or weakens the Rule of Law. In this paper, we argue that judicial activism depends on a weak Rule of Law but its claims depend on strong institutions to solve structural social problems. In other words, judicial activism implies a weak Rule of Law but its promises of change demand strong institutions.