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随着能动司法在我国的提出和热议,美国积极主义司法哲学也得到越来越多关注。马伯里诉麦迪逊案之后、司法审查制度确立之初,司法积极主义就逐步在美国得以运用。分析司法积极主义的提出与运用、政治背景与理论困境,对于研究美国司法积极主义和我国能动司法都大有裨益。这不仅有助于学者厘清两者之间的意蕴差别,建立一个统一的话语平台。而且有助于了解美国的司法哲学,从而谨慎地选择对待西方政体下的司法形态。
With the active judicial proposal and hot discussion in our country, American positive jurisprudence has also drawn more and more attention. After the case of Marbury v. Madison, the judicial review system was first established, and judicial activism was gradually applied in the United States. Analysis of the establishment and application of judicial activism, political background and theoretical predicament will be of great help to the study of American judicial activism and our country’s active judicial system. This not only helps scholars to clarify the differences between the two, and establish a unified discourse platform. But also helps to understand the American judicial philosophy and thus discreetly chooses to deal with the judicial form under Western regimes.