Rule of law and types of judge

towards an ideal typology of judicial activism in the Constitutional State

Abstract

This theoretical essay reformulates, as ideal types, the models of the Liberal State, the Social State and the Democratic State under the rule of Law; and the hypothesis of their correlation with the models of judicial behavior described by François Ost, respectively, as judge Jupiter, judge Hercules and judge Hermes. We begin by briefly explaining the methodology of the ideal typology. Afterwards, we refute, as extreme and mistaken models, both the “myth of the robe” and the perspective of American legal realism. We establish the correlation between the Liberal State and the judge Jupiter. We problematize judicial activism under a liberal constitution by looking at the American case. We discuss the hypothesis of the prominence of the executive branch in the Social State. We establish that there is a weak correlation between “social” constitutionalism and the judicial behavior described as “Herculaneum”. Finally, we confirm the hypothesis of the correspondence between the Democratic State under the rule of Law and the model of judicial behavior associated with the judge Hermes.