The roots of the judicialization of politics
In recent decades, a large number of contemporary democratic – and, to some extent, also non-democratic - political systems have been characterized by a significant expansion of the part played by courts - i.e. of judicial power - a phenomenon often defined as "the judicialization of politics".
Judicialization presents two - not necessarily related - phenomena:
- “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”…
- And/or “the spread of judicial decision-making methods outside the judicial province proper” (Tate and Vallinder 1995, p.13), i.e. the increasing propensity of non-judicial structures and institutions at assuming decisional criteria taken from the judicial world: e.g. Parliaments debating the constitutionality of a bill, rather than its merits, or the administration more worried about procedure rather than successfully implementing public policies.
The roots of judicialization: democratization and the new constitutionalism
The expansion of judicial power – i.e. the judicialization of politics – has involved most democratic countries, in both the civil and the common law worlds, although it has been stronger in some countries than in others.
The reasons behind these developments are several.
- First, the period has been characterized by several "democratization waves": after the second World War, during the 1970s in Southern Europe, in the 1990s especially in East Europe and Latin America. The last 25 years have been especially characterized by a worldwide trend toward democracy.
- The new democracies, reacting to previous authoritarian and totalitarian regimes, have been heavily influenced by a new sort of constitutionalism, charcaterized by forms of judicial review of legislation as well as the strengthening of guarantees of judicial – and often also prosecutorial – independence (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 and the European Court of Human Rights.
The legal culture
Another related element supporting judicialization has been the new legal culture.
A new emphasis on citizens' rights and entitlements and the emergence of an instrumental approach to law – understood as a tool for advancing individual or collective goals – have become common traits of contemporary societies.
They deeply affect citizens' attitudes towards law and the legal system, with the consequence that the ideas and values that shape the relationships between law and society in various countries seem less different than in the past.
Today, there is virtually no area of social life immune from public regulation, and thus no area can be excluded from judicial intervention.
In fact, the demand for individual and collective rights, fuelled 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.
The welfare state
An additional factor of judicialization can be found in the development of social rights and the corresponding growth, in the second half of the XX century, of welfare policies (Marshall 1950).
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: Germany, USA, Italy, Hungary
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 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. In the summer of 2012, most European decision-makers have waited with increasing anxiety the decision by the German court on the constitutionality of the German participation to the Euro rescue funds.
In fact, according to same views, a negative decision on the part of the court would had likely brought about the collapse of the Euro currency.
The decision, issued on September 12, rejected calls to block the permanent Euro-zone rescue fund - the European Stability Mechanism - and the European fiscal treaty. But the Constitutional Court imposed strict conditions, including a cap on Germany’s contribution, which it said could only be overruled by the German parliament. Therefore, it deeply affected the currency management of the euro-zone.
The case was later referred to the Court of Justice of the European Union. In June 2015 the Court ruled the Euro-rescue initiatives legitimate.
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 on the political system 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.
Hungary: curbing judicial activism.
Besides examples of judicialization, also cases can be found in which the political system has attempted – with some success – at containing udicial power. One of these cases is Hungary.
After the collapse of communism, in the 1990s, Hungary was one of the countries introducing what are likely to be the most radical reforms in the administration of justice. Judicial independence was greatly strengthened, with the institution of a powerful judicial council, in charge of recruitment and promotion of ordinary judges.
As for constitutional review, it was entrusted to a separate and independent constitutional court, according to the model envisaged by Hans Kelsen (see also lesson four).
Staffed with prestigious lawyers, the Hungarian Constitutional Court has been considered one of the most activist in the word. For instance, in the first five years after its institution, in 1990, the court invalidated one third of the statutes it was called to evaluate (Gardbaum 2015).
Among them, the Court stroke down laws on topics like the death penalty, sexual orientation discrimination and government's austerity program, this last decision having a strong impact on the State's budget. Although the court was praised at the international level as an example of progressive and liberal judicial policies, not all national political actors welcomed its activism.
Hungary: the backlash
The activism of Hungarian courts - and especially of the Constitutional Court - was increasingly criticized by right-wing political parties and groups.
Already between 1998 and 2002 the right-wing government led by Viktor Orban tried to curb judicial power, but at that time it did not succeed, because of the lack of the supermajority needed for amending the constitution.
However, in 2010, Orban has been able to come back to power, this time with a supermajority, and quickly moved to implement his plans. The new Constitution, enacted in 2012, heavily targets the ordinary and the constitutional courts.
The independence of ordinary judges has been drastically circumscribed, by reforming the composition and powers of the judicial council. Above all, the Constitutional Court has been "packed" with the appointment of new judges, more in tune with the political majority. In addition, the powers of the Court has been reduced, by prohibiting judicial review of any law with an impact on the public budget (unless it infringes particular listed rights).
Moreover, all Court’s decisions enacted before the new Constitution have been nullified (Gardbaum 2015). The Orban’s reforms have provoked strong criticism at the international and European levels. However, so far, the result has been a significant curbing of judicial power in Hungary, a fact likely to be related to the still weak legitimacy enjoyed the courts (Kosar and Sipulova 2017). Recently also Poland seems to be following a similar path: Protests staged across Poland as controversial judicial reform law signed.
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 lesson, 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 channel 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.
Dahl, R., Decision-Making in a Democracy: The Supreme Court as a National Policy Maker, in "Journal of Public Law", 1957, pp.289
Dworkin, R. (1978), No Right Answer?, in "New York University Law Review", 53, pp. 1-29
Friedman, L.M., Is There a Modern Legal Culture? in "Ratio Juris", 1994, pp. 117-131
Gardbaum, S. (2015), Are Strong Constitutional Courts Always a Good Thing for New Democracies?, in "Columbia Journal of Transnational Law", 53 , pp. 285-320
Guarnieri, C., Courts Enforcing Political Accountability. The Role of Criminal Justice in Italy, in Diana Kapiszewski, Gordon Silverstein, Robert A. Kagan (eds.) Consequential Courts. Judicial Roles in Global Perspective, Cambridge University Press, 2013, pp. 163-180
Kosar, D. and K.Sipulova, The Strasbourg Court Meets Abusive Constitutionalism, in «Hague Journal on the Rule of Law», 2017
Marshall, T. H. (1950). Citizenship and social class and other essays, Cambridge: Cambridge University Press
Sartori, G., Constitutionalism: A Preliminary Discussion, APSR, 1962, pp. 853
Shapiro, M. (2003), Judicial Review in Developed Democracies, in "Democratization", pp.7-26. Stone Sweet, A. (2000), Governing with Judges, Oxford, Oxford UP
Shapiro M, (2013), Judicial Independence: New Challenges in Established Nations, in “Indiana Journal of Global Legal Studies”, XX, n.1, pp. 253-277
Tate, C. N. and T. Vallinder, The Global Expansion of Judicial Power, 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
- 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