Conclusion

We are witnessing the deep transformation of our constitutional civilisation. The pillars of constitutional democracy that we have inherited from the nineteenth and twentieth centuries have been profoundly shaken.

Traditionally constitutional democracy is prone to conflict. It is a system that is open for challenges related to social disorder, protest, disagreement and contesta- tion.1 Hence, implosion and explosion of constitutional democracy can be expec­ted as a result of the conflictual nature of constitutional democracy. In this context, the courts are supposed to be guardians of legality, neutral arbiters in constitutional battles for power, and ultimate guardians of human rights. Dis­advantaged in terms of democratic legitimacy courts are possessing other valuable constitutional resources - neutrality, expertise and political and populist detach­ment. At least, this is the idea that underlines the courts’ institutional design during Western legal modernity.

There is also a range of novel challenges to which the courts are exposed. The expansion of ‘constitutionalism beyond statehood’² in recent decades, quite visible since the beginning of the 1990s, confronted constitutional theory and practice with the problem of ‘ordering of constitutional orders’. Regardless of whether multilevel constitutionalism or constitutional pluralism has been used as an expla­natory or ordering scheme for the emergence and development of international and administrative orders with elements of constitutionalism, supranational con­stitutionalism was on the rise. Additionally, it was paralleled by more demanding

1 See Belov, M.

2 See Dobner, Petra and Martin Loughlin (eds.) Twilight of Constitutionalism? Oxford, Oxford University Press, 2010; and Walker, N. ‘Taking Constitutionalism beyond the State’, Political Studies, vol. 56, no. 3, 2008, pp. 519-543.

3 For the concept of ‘ordering of constitutional orders’, see Tanchev, E. ‘The Con­temporary Supranational Constitutional Pluralism or the Ordering of Constitutional Orders’ in P. Kirov (ed.) Constitutional Studies 2012-2013 (Sofia, ‘St. Kliment Ohridski’ University Press, 2014), pp. 171-198 (in Bulgarian).

DOI: 10.4324/9781003200666-15 and far-reaching concepts and phenomena such as global constitutionalism and global governance.

Thus, the courts were confronted with plurality of legal orders, some of which even had constitutional features. The ordinary courts were overburdened with the application of international and supranational legal standards drifting away from jurisprudential routine practices of the twentieth century. This overburdening has been simultaneously conceptual, epistemic and cultural. However, the constitu­tional and the supreme courts especially acquired novel roles and functions within composite, pluralist, multi-layered constitutional (dis)order. They gained the status of gatekeepers of the domestic constitutional and legal order functioning at the same time as transmitters of international and supranational law. Thus, the constitutional and supreme courts gradually became a sort of membrane on the edge between national, international, supranational and global legal orders. Natu­rally, this novel and extremely contested position allowed them to expand in the political realm, to engage in constitutional politics, to shape constitutional axiol­ogy, to promote constitutional teleology and to become important factors in constitutional ontology.

Hence, globalisation, internationalisation of constitutional law and con­stitutionalisation of international law massively promoted judicial activism.

The combination of challenges stemming from globalisation is paralleled and exacerbated by a range of to an extent interrelated political developments that are changing profoundly the socio-political context in which the courts exist and function. The expansion of neo-liberal globalisation and its ongoing crisis, the rise of illiberalism, illiberal constitutionalism, authoritarian constitutionalism and con­stitutional populism, the clash between extreme versions of liberalism and con­servatism, globalism and nationalism jointly produce poisonous constitutional climate and shape a dangerous power network.

The courts are currently embedded in this power field of intense friction between political extremities. They are stretched between powerful political factors pursuing divergent and frequently controversial and antagonistic political agendas. Supreme and constitutional, international and supranational courts are in posses­sion of important tools by virtue of which they can engage in policy-making going beyond their role of neutral arbiters and safeguards of legality and increasingly performing as political players and even as law-makers.^[594] Moreover, they also have the incentive and even the justification to go beyond legalism and self-restraint and to engage in constitutional politics via judicial activism.

This book offers more questions than answers. Its aims has been to raise the awareness of the impact of judicialisation of politics, politicisation of the judiciary, judicial activism and even imperial judicial politics of constitutionalism, constitutional theory and constitutional law. The focus of the book is on the role of courts in the context of globalisation, emergency constitutionalism and rising illiberalism and technocracy.

Several conclusions can be made on the basis of the intellectual and scientific discourse offered by the contributors to this edited volume in their respective chapters. The conclusions are made on the basis of solid theoretical arguments launched by the authors and are further developed and exemplified through comparative research and illustrative case studies. Hence, judicial activism is viewed through the prism of legal and socio-legal methodology in a theoretical and comparative perspective. The analysis and the conclusions that stem from it are grounded predominantly in European experience mostly within the EU legal and constitutional context.

First, courts, especially constitutional and supreme courts, play a central role for both constitutional orders and political systems. The apex courts (supreme and constitutional courts) are simultaneously legal and political players, being bridges between law and politics. Thus, they are strategic assets for the social and the political system with constitutional standing and role in a double sense. More precisely, they are instruments for the adjustment of the legal order to the social, economic and political context and technocratic engines for promotion of legal, political and constitutional reform. In this regard, courts’ performance and espe­cially their case law have both legal and socio-legal implications. Thus, the apex courts trigger legal, political and constitutional reform directly by virtue of activist judicial interpretation of the constitutional texture or indirectly by outlining and framing its key areas or topics.

Second, judicial activism is both strategy and tactics. It is used for strategic reallocation of the courts within the overall scheme of power distribution and accomplishment, undermining the role of the demos and the democratically elec­ted institutions. Thus, judicial activism is a challenge to separation of powers and democracy. Paradoxically, in the long term, judicial activism may both hamper and promote democracy. It will redefine our concepts of democracy and separation of powers. Judicial activism is at the same time also a tactical tool for shaping and forming different, important judicial policies. It is a tactical tool embedded in and dependent on the rule of law.

Third, courts are entrenched on the conceptual, normative and empirical bor­derline between law and politics in a twofold way. They are influencing politics and are engaging in policy-making. They are not only correctives of illegal policies, safeguards of rights and arbiters of constitutionally provided competences. Apex courts are also policy-initiators going well beyond traditional theories of democ­racy and separation of powers. At the same time, courts - especially supreme and constitutional courts - are also influenced by political factors and considerations. They are being politically influenced in a range of ways. Thus, the issue of judicial independence and judicial impartiality should be reassessed in the light of illiberal- ism, authoritarianism and populism. Several contributions to this book show differ­ent ways of improper and unconstitutional politicisation of constitutional courts.

Fourth, courts are gatekeepers of national constitutionalism. They are mem­branes between national, international and supranational legal orders. They are engaged in multilevel constitutional and political games, being the ultimate players in the context of constitutional pluralism to the extent of gradually evolving to the standing of global judicial empire.

Fifth, apex courts - the supreme, constitutional, international and supranational courts - are revolutionising the constitutional law and modern constitutionalism in multiple ways. They are putting pressure on ideas, concepts and paradigms with fun­damental importance for contemporary constitutionalism and constitutional law. They are blurring the line between law and politics. Courts are challenging key principles of constitutional law, most visibly rule of law, democracy and separation of powers. They are producing important effects and side-effects in both authoritarian and democratic constitutional orders, being one of the main promoters of technocracy in the form of juristocracy.^[595] Thus, courts are increasingly functioning as triggers of constitutional revolution, which rather paradoxically is sometimes achieved in an evolutionary manner. Thus, judicial activism goes hand in hand with (re)evolutionary courts.

Sixth, judicial activism is especially visible, important and problematic under extreme conditions. Emergency situations foster judicial activism. They allow supreme and constitutional courts to actively engage in protecting human rights, declaring unconstitutionality or illegality of acts or competence infringements and explain constitutional and international law provisions related to democracy and rule of law standards. Thus, courts may be promoters of justice and rule of law in emer­gency situations. Nevertheless, they may also be contributing to human rights and competence infringements in emergency situations being accomplices of the political institutions belonging to the legislative and executive power and even to technocratic expert bodies with little or no constitutional standing and legitimacy. Hence, judicial activism in emergency situations might be very detrimental to certainty, proportion­ality, balancing of rights and institutional competences, thus presenting itself as an impediment to rule of law and democracy. This finding, exemplified by several con­tributions to this volume, brings again to the front the advantages, but also the huge risks, that judicial activism imposes on key principles of constitutionalism. Hence, the book should be considered also as an invitation for critical thinking.