Courts do not merely interpret law: they make it. In all legal systems, judgescannot escape making law because written laws are not always clear and unambiguous. In this sense, judicial discretion is unavoidable and part of the legitimate judicial process. Legitimate judicial discretion, however, should be distinguished from judicial activism, which occurs when courts disregard the clear and precise wording of the relevant legal texts or resolve legal uncertainty to further certain political objectives or their own power. Or when faced with objective legal uncertainty, they systematically resolve such uncertainty in a specific direction only, again primarily to achieve specific political ends. A prime example of an activist court is the European Court of Justice (ECJ), originally set up as an impartial arbiter to decide competence disputes between the EU and its member states, displays a distinct pro-EU bias in almost all its decisions. The ECJ has gradually but steadily extended the scope of Union law at the expense of national law.
