Judicial activism and non-legal factor in tax law

The aim of this paper is to propose legal bases for the influence of non-legal elements that are taken into account in a complex judicial decision. The first part will be expositive in order to demonstrate the incompatibility of legal theory and jurisprudence to guide the judicial reasoning as a whole. On the second part, eminently critical, the activism versus self-constraint doctrine shall be pointed out as an invalid approach to encompass all elements that involve judicial reasoning and constraint judicial discretion. On the third part, various approaches for a decision making will be disclosed - political, sociological, psychological, economical, legal and others - based on the studies of Richard Posner. After a quick brief on the non-legal elements that come to judicial reasoning, some few propositions will be presented for the Academy in order to engage the problem, as well as to the Judiciary.