"So, which side is dominant right now?"
This is a question that naturally comes to mind when observing the titanic clash between the two great worlds of judicial activism and judicial passivism. Are we living in an era where judges actively grab the world by the collar and lead it forward, or are we in an era where they step back behind the legislature and peer solely at the literal text of the legal code?
To skip straight to the conclusion: the current mainstream landscape is not a complete victory for either side. It is closer to a "see-saw game" where the counterweight shifts constantly depending on the atmosphere of the era and the circumstances of the nation. Nonetheless, the solemn compromise carved out by modern constitutional jurisprudence is this: "Be more active than anyone else when shielding individual human rights, but remain thoroughly passive in the grand arenas of politics and economics."
The Counterattack of Passivism Summoned by Fatigue
From the mid-20th century to the early 21st century, the world witnessed the golden age of "judicial activism." During the civil rights movement in the United States or the formative years of the Constitutional Court in South Korea, it was the mainstream justice of the era for judges to actively raise their voices and reshape an unreasonable society.
Recently, however, the global trend has shifted toward a sense of "fatigue" and "backlash" against the excessive intervention of the judiciary. Seizing upon this rift, judicial passivism (judicial restraint) has launched a counterattack with a terrifying momentum.
The most symbolic battleground is the United States. In recent years, the U.S. Supreme Court has rapidly shifted rightward, overturning a series of progressive precedents (such as the constitutional guarantee of abortion rights) that had stood for decades. Their justification is thorough passivism: "Judges must stop creating new rights under the ambiguous banner of ‘the spirit of the Constitution’ and return strictly to the original text as it was written (originalism)."
Because hot potatoes like abortion, immigration, and climate change are repeatedly dragged into the courts due to the legislature’s failure to compromise, the criticism of "Are judges kings? Why are nine unelected judges making political decisions?" has gained global resonance, lending immense weight to passivism.
South Korea’s Current Address: Surgical Activism
Where, then, does South Korea stand? By its very nature, the Constitutional Court of Korea is a monster equipped with some of the most potent and "active" powers in the world—capable of impeaching a president and dissolving a political party. Yet, looking at the mainstream tone of its actual verdicts, the Court alters its temperature entirely depending on the matter at hand.
On issues involving "individual liberty and minority human rights"—such as declaring the crime of abortion unconstitutional, recognizing conscientious objection to military service, and restricting the crime of indecent acts under military law—the Constitutional Court wields a highly active blade. It leads the changes of the era by utilizing its verdicts to smash outdated laws that the National Assembly refuses to touch out of fear of losing votes.
Conversely, in realms like real estate taxation, reconstruction regulations, and titanic diplomatic or political agreements, its attitude mutates instantly. Taking a step back into passivism (restraint), the Court maintains: "This is a domain where the legislature and the executive, backed by the public vote, must decide with policy discretion; it is not a matter for the Constitutional Court to calculate depreciation on."
The Most Sophisticated Mainstream Today: ‘Principled Minimalism’
Amidst this extreme jumping back and forth between the active and the passive, a highly sophisticated theory has recently emerged as the mainstream trend in academia and legal circles: "Principled Minimalism."
This theory departs from a dual self-reflection: judges must not fall into the dogmatism of trying to reshape the entire world on their own (excessive activism), nor should they exhibit the cowardice of hiding behind legal texts in the face of a rampaging majority (excessive passivism).
The role they propose for a judge is that of a "precise surgeon." Grand value directions or economic policies of a society should be left to the elected powers—the parliament and the government. However, the moment a pinpoint flashpoint occurs where a citizen’s fundamental rights are brutally trampled in that process, the judge must lift the scalpel and precisely excise it. It is a demand to intervene minimally, and only as much as is strictly necessary.
A See-saw Game That Will Never Stop
Ultimately, the mainstream today is not a frozen, definitive answer. It exists in a state where a fierce territorial war is fought inside the courtroom every single day: a reflection that excessive judicial activism in the past paralyzed politics (the revival of passivism), countered by the terror that focusing strictly on literal text as in the old days might birth another monster like Hitler (the necessity of activism). This dynamic state is the mainstream.
The moment one side wins and the see-saw collapses entirely in one direction, democracy faces ruin via either the tyranny of the majority or the tyranny of the judiciary. Stretching from the agonies of Aristides, who was called "The Just" all his life, to the modern constitutional courts of today, humanity continues to walk a tightrope—precariously balancing itself to avoid falling off this cold-blooded see-saw of morality.
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