Conclusion

In light of the debate on judicial activism at the constitutional level, i.e., the involvement of Constitutional Courts in political law-making, this chapter has investigated the issue of whether such courts should be considered primarily legal or political actors.

After having pointed out the reasons why Constitutional Courts in established Western democracies can be seen as being legal actors, but with strong ties to the political arena, the central argument of this chapter has been on why one should normatively impose upon these courts the label of ‘legal actors’, though they play a political function. Based on this location within the legal world, one can then draw two general indications on how to approach the activisms of such highest courts. First, the (natural) political activism of the Constitutional Courts in their functions ought always to be under the scrutiny of exclusively legal criteria (and not, for instance, of political opportunity). Second, the entrance of the political world into the Constitutional Courts should always be tolerated as to their function and not as to their structure, by limiting for instance the further politicisation of the selection process of the justices.

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Source: Belov Martin. Courts and Judicial Activism under Crisis Conditions: Policy Making in a Time of Illiberalism and Emergency Constitutionalism. Routledge,2021. — 224 p.. 2021

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