—Fernanda Florentino Fernandez Jankov, PhD, Faculty of Law, University of São Paulo (USP), research focusing on jurisdictional transformation, delegated authority, and the constitutional reconfiguration of sovereignty in a global context
The expansion of judicial power has become one of the defining features of contemporary constitutional democracies. Courts are increasingly called upon to resolve politically salient disputes, interpret open-ended constitutional provisions, and respond to legislative omissions. In this context, the language of “judicial activism” has gained global prominence. Yet as the term circulates across legal systems, it often loses the structure that originally made it intelligible.
This raises a fundamental question: when we describe courts as “activist,” are we referring to a universal phenomenon—or to a concept rooted in a specific legal tradition? This post argues that judicial activism is best understood not as a transsystemic concept, but as a historically situated feature of common law adjudication. Detached from that institutional context, its migration into civil law systems may distort both diagnosis and constitutional design.
Judicial activism is not a free-floating category. It emerges from a particular institutional environment: the common law tradition, where judicial reasoning operates within a structured framework of precedents, doctrinal continuity, and disciplined methods of argument. Decisions are not isolated acts of will; they are part of an ongoing interpretive practice in which each judgment must be connected to what came before and justified in light of it. As Ronald Dworkin famously argued, adjudication resembles a “chain novel,” in which each judge contributes a new chapter while remaining constrained by the integrity of the narrative.
A central but often overlooked element of this structure is the use of judicial tests. In common law systems, courts do not operate solely through abstract principles or open-ended balancing. Instead, they rely on structured analytical frameworks—such as strict scrutiny, rational basis review, and various forms of balancing—that guide how legal norms are applied to concrete cases.
These tests perform a critical function. They do not merely justify decisions after the fact; they organize judicial reasoning from the outset. Each test defines the intensity of review, allocates burdens of justification, and establishes criteria that must be satisfied for a decision to be considered legally valid. In doing so, they transform what might otherwise appear as discretionary judgment into a form of disciplined argumentation.
Strict scrutiny, for example, requires that a measure affecting fundamental rights pursues a compelling objective and be narrowly tailored to achieve that objective. Rational basis review, by contrast, adopts a deferential posture, asking only whether a measure is reasonably related to a legitimate governmental purpose. Between these poles, intermediate scrutiny and balancing approaches calibrate the relationship between rights and public interests. The significance of these tests lies in the structured pathways of reasoning they impose, rather than in any particular outcome they produce.
For readers trained in civil law traditions, this point is essential. These tests are not external tools or optional techniques; they are part of the internal grammar of the legal system. They function alongside precedent to ensure consistency across cases and to require that any departure from established reasoning be publicly justified. In this sense, they operationalize what Dworkin described as integrity: the demand that legal decisions form part of a coherent and continuous practice.
This structure is not merely methodological—it is constitutional. In the United States, judicial review—canonically associated with Marbury v. Madison—operates within a system of checks and balances that defines the role of courts in relation to the political branches. Judicial intervention is intelligible because it is embedded in an institutional framework that distributes authority and imposes limits. Even when courts act assertively, they do so within a grammar that disciplines their reasoning and structures their legitimacy.
The situation is fundamentally different in civil law systems. Built upon codification, the primacy of statutory law, and a distinct configuration of the separation of powers, these systems assign a different role to the judiciary. Although constitutional review has expanded judicial authority, the underlying logic remains anchored in legislative centrality and textual normativity. Judicial reasoning does not rely on the same historical continuity of precedents, nor on the same structured techniques that characterize common law adjudication.
It is in this context that the problem of legal transplants becomes decisive. As comparative scholars such as Alan Watson argued in Legal Transplants: An Approach to Comparative Law, and Pierre Legrand in The Impossibility of “Legal Transplants” have shown, legal concepts do not travel intact. Their meaning depends on the institutional and interpretive environments in which they operate. Transplantation is therefore not a matter of adopting terminology, but of reproducing—or reconstructing—the structures that sustain it.
When the idea of judicial activism is imported into civil law systems without such reconstruction, a mismatch occurs. Practices that are constrained by precedent and structured reasoning in common law may, in civil law contexts, appear as discretionary expansions of judicial authority. For example, proportionality balancing, standards of reasonableness, or rights-based scrutiny may function within common law systems as structured techniques embedded in precedent and doctrinal tests, yet in civil law settings they may be invoked more openly as broad justificatory formulas with fewer methodological constraints. The same judicial posture thus produces different constitutional effects depending on the system in which it is embedded.
This tension becomes particularly visible when examined through the lens of integrity. Judicial decisions are legitimate not simply because they are authoritative, but because they can be justified as part of a coherent legal practice. In common law systems, this coherence is sustained through precedents, doctrinal tests, and the cumulative nature of judicial reasoning. In civil law systems, however, coherence must be grounded in different elements—constitutional hierarchy, statutory structure, and the defined relationship between judiciary and legislature.
The distinction is not merely theoretical. It marks the boundary between two different modes of judicial authority. Courts may act as institutions of constitutional supervision, ensuring that political power remains within legal limits. But they may also drift toward a form of judicial governance, effectively substituting legislative judgement with judicial reasoning. The difference between these roles is not determined by how active courts are, but by whether their activity remains anchored in a structure that preserves the integrity of the legal system.
The problem of judicial activism, therefore, is not a question of excess or restraint. It is a question of structure.
Jurisdiction cannot be separated from the interpretive practices that sustain it. Judicial authority depends not only on formal competence, but on the existence of a framework that disciplines decision-making and renders it publicly justifiable. When that framework is absent—or when concepts are transplanted without it—judicial power may persist, but its legitimacy becomes uncertain.
The global debate on judicial activism must therefore move beyond labels. The central issue is not whether courts should be more or less active, but whether their authority remains embedded in a structure capable of preserving the integrity of law and the balance of powers.
The question is no longer whether judicial activism exists across systems. It is whether judicial authority, once detached from its institutional grammar, can still be understood as legitimate at all.
Suggested citation: Fernanda Florentino Fernandez Jankov, Judicial Authority Without Structure: Legal Transplants and the Limits of Judicial Activism, Int’l J. Const. L. Blog, May 15, 2026, at: http://www.iconnectblog.com/judicial-authority-without-structure-legal-transplants-and-the-limits-of-judicial-activism/