Piotr Bystranowski, Alon Harel and Alexander Morell

Judicial interventionism denotes the disposition of judges to make decisions that are not dictated by clear determinate rules. Judicial intervention can be unauthorized when judges decide cases in a way inconsistent with the literal meaning of the applicable legislative rule or contrary to the established legislative intention. It can, however, also be authorized when the legislature passes open-ended legal provisions (standards), which leave judges with significant discretion as to how to specify them while deciding on a concrete case.
Unauthorized judicial intervention, has been pejoratively called judicial “activism” and has been considered a serious threat to democracy. Authorized judicial intervention, in contrast, has mostly not been considered a threat to democracy because it is assumed that in applying standards judges are guided by the legislature’s rationale.
Against this backdrop we offer a two-part argument. First, we argue that in the light of an empirical finding called the abstract-concrete effect it appears highly unlikely that judges can abide by the legilator’s abstract rationale when applying standards to concrete cases. This insight topples the democratic legitimization of judicial decisions grounded in standards and extends the democratic concerns levelled against unauthorized judicial interventions to all judicial interventions. Second, however, we propose a new democratic justification of judicial intervention that applies to its authorized and unauthorized flavors alike: While the legislature replicates (at least ideally) the abstract judgments of the people, the courts at times replicate the people’s concrete judgements.