A social science approach
Traditionally, in the European context only academic lawyers cultivated the study of courts, mostly favoring a purely legal dimension. However, the formal rules that establish how the system should operate and how the judiciary should act are fundamental components of the administration of justice. Yet, it is by now well known that getting rules implemented is neither a plain nor an obvious process.
Therefore, if we are to describe how judicial institutions work in practice, it is necessary to look beyond the normative dimension.
Introduction. The global expansion of judicial power
The judicialization of politics
Over the last decades, social scientists engaged in studying the intersection between courts and politics have been paying closer attention to a relatively new phenomenon: the judicialization of politics. Relevant decisions that once fell almost exclusively in the province of parliaments and governments have been increasingly taken over by courts and tribunals, which are thus in the position to affect the public space – i.e. politics as well as policies – to an extent much greater than in the past.
Today, the role of judges appears quite different from the past. The typical function of courts – to resolve controversies on the meaning of the formal rules to be enforced in concrete cases – has been extended to include a variety of conflicts. For instance:
whether the legislation is compatible or not with higher norms (constitutional review);
the effective compliance of public administration with legal dispositions regulating its action (review of administration);
the division of powers between the branches of the state (separation of powers);
the jurisdiction of sub-national political entities and their autonomy from central governments (federalism) as well as the relations between national political entities and a supranational order (e.g. the EU);
the rights granted to ethnic, linguistic or religious groups (social and cultural rights);
- and even regime changes along with the treatment of those previously in power (transitional justice).
The Judicialization of politics: summing up
The judicialization of politics" has been defined as:
“the expansion of the province of the courts or the judges at the expense of the politicians and/or the administrators, that is, the transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts”… (Tate and Vallinder 1995, p.13)
It consists of a complex and dynamic set of interactions between justice and the political environment: especially the broadening of the jurisdiction, namely the cases and controversies that can be brought before a judge, and the increasing independence of the judicial function.
Long-term factors: democratization
In principle, democratic regimes provide not only for broader political participation but also for government’s responsibility.
Therefore, they practice some form of division of powers and commit themselves to protect the independence of courts.
Democratic transitions that have taken place in the 20th century have thus enhanced the gradual dissemination of these principles (http://www.systemicpeace.org/polity/polity4.htm).
In fact, they are often coupled with two elements: written constitutions and courts which are called upon to act as their guardians.
Long-term factors: the new constitutionalism
The new constitutionalism is based on a set of principles and institutional devices devoted to moderate political power, contain the potential excesses of the majority rule, and mitigate democracy itself.
This development has generated a long-term process which has led to emphasize non-majoritarian institutions: first and foremost the judiciary (Sartori 1962; Stone Sweet 2000).
In this process, the supranational dimension of constitutionalism has also to be taken into account: for instance, in Europe, the increased activism of national judiciaries has often found support in the Court of Justice of the European Union (http://curia.europa.eu/jcms/jcms/j_6/) and the European Court of Human Rights (www.echr.coe.int).
Long term factors: the culture of rights
Besides, the expansion of justice has also been fostered by the newfound awareness of rights prompted by the experience of the 20th century dictatorships.
Firmly established in the legal and political cultures of constitutional states, rights have steadily increased.
Next to the classical rights – civil, political and social (Marshall 1950) – other types of rights have emerged, which have been supported by cultural, economic, scientific and environmental changes, as well as by the rapid growth of the new media.
Thus, in fact, legal rules and judicial proceedings are increasingly used as advantages for seeking to advance interests that are political in nature.
In fact, there is virtually no area of social life immune from public regulation, and thus no area can be excluded from judicial intervention. The demand for individual and collective rights, fueled by the development of both constitutionalism and welfare policies, has meant that individuals and groups increasingly seek out the judicial system with the aim of obtaining an authoritative decision in their favor (Friedman 1994). In addition, unlike administrators and legislators, judges cannot refuse to provide a decision, once a case has come before the courts.
Long term factors: the expansion of public space
The expansion of government action, that has extended well beyond the traditional boundaries of military defense and public order policies, has thus determined an almost parallel expansion of courts’ jurisdiction.
Subsequent neoliberal policies – privatizations of utilities that were once in public ownership and even the retreat of welfare policies – do not appear to have substantially reduced the scope of lawmaking that today takes the form of widespread regulation of individual and collective behaviors.
Recently, several European countries have experienced a declining trust toward their classic political institutions – parliaments, executives, bureaucracies, political parties – that has contributed to channel dissatisfied claims towards courts.
The consequent proliferation of legislation has increased the significance of courts: where a legal rule exists, sooner or later a judge will be asked to interpret and apply it. Moreover, since gaps remain despite and perhaps because of the growing number of laws, judges are called to fill them. Therefore, they are called upon to make a decision in the absence of clearly stated rules or to reconcile inconsistencies by choosing among competing interpretations.
In the meanwhile, the very nature of the law has changed. Besides traditional norms establishing what people can or cannot do - which leave relatively little room to judicial discretion - there are also new types of rules, which do not simply aim to prescribe individual behavior. In fact, they seek to shape collective conduct and direct individuals and groups towards social and economic objectives, allowing a much wider discretion to the interpreter. The quantitative growth of legal regulations is thus coupled with this qualitative change.
The political context: fragmentation
However, even within similar political regimes, there are significant cross-national differences in the political prominence taken by the judiciary.
Here the political context of courts matters: in fact, as we are going to see in lesson seven, political fragmentation tends to support judicialization.
In fact, a fragmented political setting seems to be less capable to take decisions or to produce them in a timely way.
In this case, the lower decisional effectiveness of political structures leads to interests having an incentive in putting pressure elsewhere, for instance on courts, especially if courts are able to show their capacity – and willingness – to decide.
On the other hand, for fragmented political institutions is more difficult to confront judicialization, that is to assemble the political majorities needed in order to curb judicial power, for example by overruling unwelcome judicial decisions, reducing judicial independence, circumscribing courts' jurisdiction or appointing accommodating or self-restraintist (i.e. cautious) judges.
Fragmentation: the role of institutions
A corresponding institutional setting can obviously support political fragmentation.
Strong separation of powers is a case in point.
- The best example is presidentialism, a political regime in which the advent of divided government – i.e. different parties controlling the executive and legislative branches – is made more likely.
- Also true bicameralism – if leading to misalignments between the two chambers – or a proportional electoral law – making more likely multiparty governing coalitions – can bring about a state of political fragmentation.
- Also federalism, by pitting the central government against the states, supports fragmentation (See also the case of the European Union).
Overall, a fragmented setting is likely to be the by-product of a political transition in which no actor is able to impose its preferences, trust tends to be low and the uncertainty about the future high.
In these cases, much more frequent in recent decades, judicial power offers an insurance policy for prospective losers in the electoral arena.
Some examples of judicialization: USA, Germany, Italy
Some cases of judicial power: the USA
Although we will analyze the American case in depth later in lesson eight, the US provides a recent dramatic example of judicial power. In fact, the case Bush vs. Gore, decided in 2000 by the Federal Supreme Court, has had a profound impact on the American political system.
At the end of very competitive presidential elections, the two main candidates were divided only by a very narrow margin. The state of Florida emerged as crucial: getting a majority there implied winning the election. But Florida elections were contested. Not only were the two candidates, divided by only a handful of votes, but the voting in several precincts was challenged because of various irregularities.
It emerged that a large amount of votes - predominantly in support of the democratic candidate Al Gore - has been declared invalid. At that point, Gore asked for a recount of the votes, a request granted by the Supreme Court of Florida. The republican candidate, George W. Bush, appealed to the Federal Supreme Court.
The Federal Court divided itself between a majority - composed of the five judges considered conservative, all appointed by Republican presidents - and a minority of four "progressive" judges. The majority, by barring a recount of the votes casted in Florida, resulted in adjudicating the Presidency to George W. Bush, therefore affecting in a fundamental way the American political system.
Some examples of judicial power: Germany
Another example comes from Germany, from a court - the Federal Constitutional Court - traditionally enjoying a high degree of legitimacy, as we are going to see in lesson seven.
Over the years, the Court has often expressed reservations on the participation of Germany to Euro rescue funds and on the policies pursued by the European Central Bank.
So, in the spring of 2020, most European decision-makers have waited with increasing anxiety the decision by the German court on the constitutionality of the policies of “quantitative easing” carried out by the European Central Bank.
The decision, issued on May 5th, stated that the European Central Bank’s 2015 bond-buying program would be illegal under German law unless the ECB can prove the purchases are justified. In its ruling, the court criticized also the European Court of Justice – for supporting the ECB’s policy - and stopped short of ordering an end to Germany’s participation in the program via the Bundesbank, granting the ECB three months to provide an acceptable justification for the practice. (See https://www.politico.eu/article/german-court-lays-down-eu-law/) It goes without saying that the German Court’s decisions are going to have a strong impact on future EU monetary policy.
Other examples of the Court’s influence can be provided by the decisions declaring unconstitutional the representation threshold of the electoral law for the European parliament (see lesson 9).
Some cases of judicial power: Italy
The impact of criminal justice on Italian politics cannot be neglected (Guarnieri 2013). For instance, the so-called Clean Hands ("Mani pulite") investigations between 1992 and 1994, involved at least 5000 persons.
- almost 500 MPs and former MPs: among them, around 300 of those elected in 1992 (Parliament is composed of 950 members)
- several ministers: e.g. in the Amato cabinet (1992-93) 5 ministers resigned because of being formally investigated
- the investigations resulted in at least 1200 convictions: among them, all former leaders of the traditional governing parties (The so-called "Pentapartito")
- as a result, the "Pentapartito" was in practice wiped out from the political scene.
At the end of 1994, the Berlusconi never ending criminal justice saga began to develop, a phenomenon running its course for more than 20 years. The Italian case will be dealt with in depth later in lesson nine.
However, besides examples of judicialization, also cases can be found in which the political system has attempted – with some success – at containing (and constraining) judicial power. One of these cases is Hungary, while also Poland can become another example. Both cases will be dealt with later in the course.
Courts and politics: a complex relationship
As we are going to see, the relationship between courts and politics is highly complex, because of the large number of intersections between them as well as the magnitude of the values at stake.
The task of regulating these relations and the search for appropriate institutional arrangements should take into account such complexity. However, this relationship is vital for the dynamics of contemporary democratic regimes. In fact, judges are inevitably part of the political system, although they operate in a way different from other political actors.
As we are going to see in next lessons, the special position judges usually enjoy is well justified by the functions they perform, but without some institutional regulation of their power, there is a risk of opening up more opaque channels of influence between judges and political and social groups. This would run counter one of the basic traits of modern constitutionalism: to limit and check political power (Shapiro 2013).
In this course we are going to analyze in depth the ways these relations are arranged in various countries, their implications and the factors explaining cross-national variation.
Friedman, L.M., Is There a Modern Legal Culture? in "Ratio Juris", 1994, pp. 117-131
Guarnieri, C., Courts Enforcing Political Accountability. The Role of Criminal Justice in Italy, in D. Kapiszewski, G. Silverstein, R. A. Kagan (eds.), Consequential Courts. Judicial Roles in Global Perspective, Cambridge University Press, 2013, pp. 163-180
Marshall, T. H. (1950). Citizenship and social class and other essays, Cambridge: Cambridge University Press
Sartori, G., Constitutionalism: A Preliminary Discussion, in "APSR", 1962, pp. 853 ff.
Shapiro M, (2013), Judicial Independence: New Challenges in Established Nations, in “Indiana Journal of Global Legal Studies”, XX, n.1, pp. 253-277
Stone Sweet, A. (2000), Governing with Judges, Oxford, Oxford University Press. (https://books.google.it/books?hl=it&lr=&id=61AzsGk7EW0C&oi=fnd&pg=PR13&dq=autore:alec+autore:stone+autore:sweet&ots=thbCvrdnT6&sig=kTcujP9HA8cLyJSBCC9sHOSJH
Tate, C. N. and T. Vallinder (eds.), The Global Expansion of Judicial Power, New York, New York University Press, 1995
Risorse della lezione
- Introduction. The global expansion of judicial power
- The process of adjudication and the role of the judge in constitutional states
- Assessing judicial power: the judicial system and its access
- Assessing judicial power: the powers of the judge
- Assessing judicial power: the judiciary
- Models of judicial decision-making
- Quiz: Lezione 7: Theories of judicial power
- Courts and politics in common law systems: England and the USA
- Courts and politics in civil law systems
- Courts in non-democratic regimes