Courts are cornerstone institutions of liberal-democratic constitutionalism.

They are at the core of liberal-democratic constitutional design and are considered as the most important safeguards for liberal constitutional values. Thus, courts are safeguards for liberal-democratic constitutional axiology and teleology and as such are integrated in the institutional scheme of representa­tive democracy.

Courts are cherished as neutral arbiters and politically independent guardians of constitutional rights and freedoms detached from political pressures, party political schemes of power and populist temptations. They are supposed to be islands of technocratic wisdom within the sea of politics. Courts, together with administra­tion, are promoted and safeguarded as realms of political impartiality and compe­tence within the overall political power grid of constitutional democracy. They are esteemed as preserves of legal purity, political detachment and purely technocratic expertise.

It is not always the case that the courts are, have been or will be just neutral arbiters and politically independent institutions. Indeed, liberal-democratic constitutionalism is inconceivable without independent courts. Powerful con­stitutional and administrative courts are indispensable elements of this form of constitutionalism which has been the unchallenged and dominant version of constitutionalism in the Global North until the deep crises that have hit it in the last decade - the financial crisis, the migration crisis, and most recently the Covid-19 crisis. Courts have been promoters of rights and constitutionally based and legally framed freedom even at the expense of confronting institu­tions that have larger democratic backgrounds and possess higher democratic legitimacy, such as the parliaments and the executive power institutions.

The interpreters became central players of the evolving constitutional and poli­tical order. This became more visible since the death of the author^[1] in the context of accelerating legal post-modernity based on interpretative negotiation of meaning of constitutional texture and the concepts enshrined in it. Moreover, the demise of democracy is paralleled by the rise of technocracy. In this context, we are witnessing the emergence of national - and in Europe also of supranational - judicial empire.^[2] The courts - more precisely the constitutional and supreme courts - are increasingly engaging in interpretative activities based on the ‘open texture of law’.^[3] This way they are participating in norm-setting activities and in policy-making. Thus, they are more and more assuming the role of authoritative speakers of the community and strategic policy-makers in central policy domains and in crucial moments of the political process. In contrast, they are withdrawing from the position of neutral arbiters and safeguards for the observation of the rules of the game.

Hence, constitutional and supreme courts as well as international and suprana­tional courts are increasingly assertive in promoting political objectives, thus dis- proportionally engaging not only in technocratic policy-making but also in politics. This might be the case for both constitutional politics and sector-specific politics in different policy domains. Courts may prove to be powerful sources of policy visions without any proper democratic justification. They may be triggers and promoters of legal and political revolutions^[4] in ways that are not controllable by virtue of the institutional checks and balances provided by the contemporary constitutional orders.

Thus, judicial activism needs theoretical conceptualisation and critical explora­tion of its effects and side effects. This is especially true for judicial activism pro­ducing outcomes with revolutionary impact for national, sub-national and supranational constitutionalism. This is due to the fact that courts are increasingly involved in legal interpretation on the edge between national, international, supranational and at times also sub-national legal orders.

The proper assessment of courts’ activist engagement in constitutional policy­making by virtue of judicial politics is one of the keys to the understanding of contemporary constitutionalism. Judicial activism^[5] is a central phenomenon for understanding the role of courts in contemporary legal orders. Thus, when courts are engaged in activist judicial politics (or when they deliberately refrain to do so), this is an important reason for critical theoretical reflection. Judicial politics is a challenge to the traditional neutral role of courts as technocratic expert bodies entrenched in rule of law and restricted from activist engagement in sovereignty, democracy and policy-making. Hence, judicial activism is an appealing occasion for reconsideration, critical deconstruction and subsequent context adequate reconstruction of key principles of constitutionalism, such as rule of law, separation of powers and democracy. These principles need deconstruction and subsequent reconstruction in the light of judicial activism. In that regard, this book is an invitation for reflection on the role of courts in liberal-democratic constitutional orders and their functioning as engines for rule of law and democracy or for their ‘constructive deconstruction’.

The courts produce ‘constructive deconstruction’ of rule of law and democracy in a paradoxical way. They are important contributors to the establishment of liberal democracy based on rule of law being defenders of the supremacy of the constitu­tion, the primacy of international law, and human rights.

Hence, courts are deconstructing and constructing, promoting and hampering constitutional democracy in a rather asymmetric and dubious manner. This is visible also with regard to horizontal and especially vertical judicial dialogue.⁶ In fact, judicial dialogue with international and supranational courts puts the con­stitutional jurisdictions in the role of ultimate players in multilevel constitutional games.⁷ That is why judicial activism, sometimes amounting to judicial imperial­ism, on national, international and supranational levels, shifts the courts from the purely legal order to the realm of the political. It makes them overt political play­ers capable of inflicting even revolutionary changes in both the legal and the political orders. In fact, we are witnessing the emergence of networked ‘empire of courts’ - a global judicial empire - which plays pivotal role in mastering and

praeter aut contra legem?’ In: O’Keeffe, D. (ed.) Judicial Review in European Union Law: Liber Amicorum in Honour of Lord Slynn of Hadley, The Hague, Kluwer, 2000, pp. 73-79; Weatherill, S. ‘Activism and Restraint in the European Court of Justice’, in Capps, P. et al. (eds) Asserting Jurisdiction. International and European Legal Per­spectives, Oxford, Hart, 2003, pp. 255-281; Muir, E., Dawson, M. and de Witte, B. ‘Introduction: The European Court of Justice as a Political Actor’. In: Dawson, M. et al. (eds) Judicial Activism at the European Court of Justice, Cheltenham, Edward Elgar, 2013, pp. 1-10; Arnull, A. ‘Judicial Activism and the European Court of Jus­tice: How Should Academics Respond?’, ibid., pp. 211-232.

6 See Belov, M. (ed.) Judicial Dialogue, The Hague, Eleven, 2019.

7 See Belov, M. ‘Constitutional Courts as Ultimate Players in Multilevel Constituent Power Games: The Bulgarian Case’. In: Belov, M. (ed.) Courts, Politics and Con­stitutional Law. Judicialization of Politics and Politicization of the Judiciary, Abing­don, Routledge, 2019. shaping globalism, or vice versa - in triggering and promoting neo-nationalism. Courts may be agents of liberalism and neoliberalism, but also of nationalism and neo-nationalism. They may be promoters of globalism, regionalism or nationalism. In any case, their increasing role in policy shaping and policy-making should not be neglected. The role of courts in contemporary legal and political orders must be thoroughly explored and the concepts of judicial activism and revolutionary courts may serve as important viewpoints for such research.

This edited volume is a multidiscoursive contribution to the existing debate on judicial activism, judicialisation of politics and politicisation of the judiciary.^[6] In fact, it is a follow-up of a previous volume that I have published with Routledge, namely the book Courts, Politics and Constitutional Law. Judicialization of Politics and Politicization of the Judiciary. Thus, the current volume will be embedded in a solid academic discourse on topical issues related to the impact of courts on constitutional politics - a debate that has already attracted the attention of the academic community and the readership.

However, this book has something more to offer. It provides the reader with critical contributions dedicated to several important and still less researched aspects of judicial activism. The majority of the book chapters are devoted to the impact and the interrelations of judicial activism on illiberal constitutionalism and emer­gency constitutionalism.^[7] Hence, the book provides research of the role of courts in times of emergency constitutionalism, and the rising populist constitutionalism and illiberal constitutionalism.^[8]

This book is a collective effort for exploring the phenomenon of judicial acti­vism under crisis conditions and its impact on democracy and rule of law.

All chapters of the book are united by the idea of exploration of judicial activism and its impact on rule of law and its concrete elements - certainty and proportionality. The book explores the different manifestations of judicial activism that allow courts to play a central political role in mastering socio-political relations. The concept of revolutionary courts is both an innovative feature of the book and another unifying threat allowing the book chapters to engage in intellectual dialogue with each other. Last but not least, the coherency of the book is assured by the socio-legal approach of most of the chapters and their focus on constitutionalism under extreme conditions^[9] [10] consisting of democratic backsliding, rising anti-constitutionalism and spreading of emergency and more precisely of pandemic constitutionalism.

To sum up, there are several factors that unite the contributions of this volume. These are the research methodology, the core concepts and theoretical concerns, some of the main assumptions and the underlying topic of revolutionary courts as judicial engines of constitutional and political order which are especially powerful in times of crisis. In that regard, the book is based on clear logic. It starts with conceptual and comparative issues, continues with the role of judicial activism on the edge of national, international and supranational law, explores the interplay between judicial activism and illiberal constitutionalism and concludes with an analysis of the interrelation between judicial activism and authoritarian trends in times of emergency constitutionalism based on pandemic measures.

The last two chapters explore exactly what is the impact of pandemic and emergency constitutionalism on rule of law and democracy and what is the con­tribution of the courts to the trend for emergence of a new ‘health Leviathan’. Thus, Chapters 8 and 9 are an intellectual response to the role of courts as pre­ventive players or as contributors and precursors of democracy and rule of law infringements and trends towards paternalistic and authoritarian constitutionalism.

In that regard, the last two chapters of the book included in Part IV are a must for a book on judicial activism in the current socio-legal circumstances and con­text. This is due to the fact that judicial activism in times of pandemic and emer­gency constitutionalism is a topical issue which should attract the attention of the academic audience. More precisely, we should upgrade the traditional debate on the impact of judicial activism on sovereignty, representative democracy and separation of power with research and deliberation focused on judicial activism in the context of emergency and pandemic constitutionalism, failures of rule of law systems, and the interplay between militant democracy and democratic back­sliding. This should be a discussion of the topical issues which allow novel view­points on the role of courts in a socio-political context that is detrimental to rule of law and democracy. One of the tasks of this book is to launch arguments and insights for researching judicial activism under extraordinary and extreme condi­tions that put the liberal-democratic constitutional order and constitutionalism under a kind of stress test.

Usually judicial activism is revolutionary. This is due to the fact that it produces radical changes in the constitutional and legal order, with a massive impact on the socio-political order. Conceptually activism relates to revolution, not to evolution. Both revolution and evolution are associated with profound change with legal, political and social dimensions. Activism and revolution produce shifts of reality and ruptures of established patterns and are promoters of socio-political and legal dynamics and change.

However, there are situations when judicial activism may also be evolutionary. This is the case when courts follow already established jurisprudential patterns produced by previous revolutionary case law while still engaging in policy-making and thus in constitutional politics. The confirmation and continuation of existent judicial politics is still politics. Thus, it constitutes a form of judicial activism.

Hence, judicial activism can be both revolutionary and evolutionary. It can both produce radical novelties and open new patterns of development, or produce ruptures in constitutional orders. But it can also confirm established jurisprudence that has already triggered legal revolution or has had revolutionary impact on constitutionalism and the social and political life. Thus, activist courts may also be producing affirmative case law serving as a continuation of previous revolutions, or it can even be entrenched in jurisprudential path-dependency. That is why activist courts are typically revolutionary, but may be evolutionary as well, although as an exception. Consequently, the book explores judicial activism of both revolutionary and evolutionary courts, focusing mainly on constitutional courts as well as on international and supranational courts.

The book assesses the impact of expansive, activist and even imperial courts on rule of law, separation of powers and democracy, taking into account both the advantages and disadvantages of such institutional behaviour. Most of the chapters of the book focus of activist courts which had revolutionised some policy domains, or may, could or should do this in the future. Thus, the book looks at the revo­lutionary impact of judicial policy-making that has already occurred as a fact (Di Bitonto) or as a phenomenon producing a negative turn in constitutional politics (Belov, Gardasevic, Kustra-Rogatka, Selejan-Gutan). The book also explores the eventual need for judicial activism that may or should be accomplished (Abu Hussein, Besirevic). One of the contributors (Abu Hussein) explores the revolu­tionary impact of the mere introduction of constitutional courts in countries with authoritarian constitutional design and a traditionally conservative socio-political context. Thus, to an extent, paradoxically, the existence of constitutional courts, their introduction in the institutional design of the constitutional orders of late­comer rule of law states is considered to have a revolutionary impact on their social, political and constitutional orders. Moreover, some of the chapters (e.g. Schlegel, but also in a different context Besirevic) conceptualise judicial activism as a defence strategy.

In that regard, judicial activism is viewed as both shield and sword. It is understood as an instrument for expansive judicial policy-making that may endanger democracy and rule of law, impede legitimate norm-setting through parliamentary process, and introduce ‘gouvernement des juges. It is conceived as a defence strategy for democracy against populist political regimes and authoritarian constitutionalism. And it is conceptualised as a tool for organising the constitutional order in a technocratic manner on the edge between democracy, technocracy and authoritarianism, and on the border between rule of law and rule of men.

In other words, the book is an attempt to expose both the advantages and dis­advantages of judicial activism. It shows the perils of power-hungry courts and the threats of extensive constitutional interpretation by activist courts to constitutional democracy, separation of powers and the rule of law. It demonstrates the possible alliances between courts and governments in seizing power from parliaments and the people, especially in times of constitutional emergency. However, it also shows the impact of judicial activism on ‘ordering constitutional orders’^[11] [12] in times of ‘constitutionalism beyond statehood’.^[13] The book defines the promises of judicial activism for safeguarding democracy and rule of law in times of illiberalism, populist constitutionalism, illiberal democracies, authoritarian constitutionalism and democratic backsliding. Hence, the book aims to explore the impact of activist courts on democracy and rule of law under extreme conditions.

The book is settled on the borderline between law and politics in a twofold manner. First, it explores the way the courts - especially the constitutional courts - are blurring the line between law and politics. It has already been mentioned that the book analyses judicial policy-making, judicialisation of politics, politicisation of the judiciary, and their impact on constitutionalism and the constitutional order. In this context constitutionalism is conceived as a socio-legal phenomenon with implications in the ideal, written and factual constitution, while the constitutional order denomi­nates the valid law and the way it is structured, maintained and evolved. Hence, the book explores the impact of courts on both constitutionalism as a socio-political phenomenon and empirical process and on the constitutional order conceived as systems of legal rules structured and organised in a particular way.

Second, some of the contributions to this volume explore the impact of politics and political actors on courts. Thus, it problematises the politicisation of the judi­ciary and the perils to judicial independence stemming from political factors and power centres. The debate here is structured around several main groups of issues - the threats to judicial independence in times of populist constitutionalism and illiberal democracies (Kustra-Rogatka, Selejan-Gutan and Besirevic), the use of courts as triggers of political reforms (Abu Hussein, Besirevic) or the concerted action between courts and political players, e.g. the governments, to promote emergency constitutionalism limiting in a disproportional and imbalanced manner constitutional rights and endangering parliamentarism, legal certainty, pro­portionality and the rule of law (Belov, Gardasevic).

The book starts with a theoretical explanation of the concept, features and main manifestations of judicial activism and on its impact on shaping the relationship between constitutional and international and supranational law. However, the book focuses mainly on judicial activism in extreme conditions (e.g. in times of emergencies and pandemics) or in the context of democratic backsliding, author­itarian constitutionalism and illiberal constitutionalism. Thus, the book may be considered a contribution not only to the debates on judicial activism (including the discussion of the impact of courts on certainty, proportionality and balancing of rights), but also on revolutionary courts either challenging authoritarian context or contributing for its expansion. Thus, this is a book on the role of courts in the context of illiberalism and democratic backsliding.

Part I of the book explores the concept of judicial activism, its impact on both the legal system and the political order and the role of courts in shaping the structures of the legal order. These issues are explored in theoretical and comparative constitu­tional perspective. Hence, Part I offers theory, comparative analysis and important case law study.

In Chapter 1 Mauro Zamboni explores the stretching of the courts between law and politics from an institutionalist and functionalist perspective. The author critically assesses the standing and role of courts as institutions performing important political as well as legal functions. Zamboni outlines the main reasons for justification of the institutional performance of the courts from the competing perspectives of the legal and the political order.

Zamboni explores judicial activism from different perspectives, such as institu­tionalism and functionalism, legality and legitimacy. He analyses judicial activism as a socio-legal phenomenon and compares it with other related phenomena. That is why the author provides the reader with a ‘definitional framework' comparing judicial activism with ‘constitutional politics', ‘government of judges' and ‘judi- cialisation of politics'. Furthermore, he also defines the use of the concepts of courts, legal actors and political actors in this chapter. This is due to the fact that the chapter explores the judicial activism of all the highest courts in their dual capacity as both legal and political actors.

Mauro Zamboni offers an insightful analysis of the position of the constitutional courts between law and politics. He explores the relevance of the ‘political vs. legal nature' discussion with regard to the constitutional courts. Finally, he provides a possible solution to the problem of judicial activism as a twofold (legal and poli­tical) phenomenon stretching the courts between the legal and the political order from the perspective of legal theory.

The main claim of Zamboni is that ‘constitutional courts, though playing a bridging role between the political and legal worlds, are - from an institutional and functional perspective - primarily legal actors’. Thus, according to the author, ‘the constitutional courts’ primary responsibility is towards the legal community and the paradigms governing its discourse’.

The second chapter in Part I of the book is written by Stefan Schlegel. It explores the strategies of the apex courts - the constitutional and supreme courts - in domesticating international and supranational law. Thus, the chapter explores the role of these courts for ‘ordering of constitutional orders’. Schlegel confronts us with an original intellectual provocation defining the judicial activism of the courts on the edge of constitutionalism ‘within’ and ‘beyond’ statehood as a national judicial self-defence.

Schlegel explores the role of courts for adjustment of plurality of legal orders in the zone of interaction between national, international and supranational law. His chap­ter is a particular and specific continuation of Mauro Zamboni’s chapter in the sense that they both focus on the institutional reasoning on their common problem - the judicial activism of constitutional and supreme courts. Apart from this commonality these two chapters that jointly form the first part of the book have several differences. Two of them are of special importance. First, Zamboni compares the impact of courts on legal and political order, while Schlegel differentiates between cultural and insti­tutional embeddedness of the reasoning for the role of courts as activist moderators between different legal orders. Second, Zamboni offers conceptual analysis of judicial activism from the viewpoint of legal theory, while Schlegel explores a particular manifestation of this phenomenon from a comparative perspective.

In that regard, Schlegel provides a comparative chapter that sets three case studies within a broader conceptual framework determined by the problems of judicial activism. More precisely, he compares the attitude of three courts - the Swiss Supreme Court and the German and Austrian Constitutional Courts. Schlegel explores the interdependence between the role of courts, the flexibility of constitutions and the constitutionally provided rank of international law in the domestic legal order. He shows the intensity and patterns of judicial activism related to that specific issue of adjustment of constitu­tional orders and their sources of law. The very topic of such judicial activity demon­strates the key role of courts in the world with increasing legal pluralism. Their role as masters of adjustment of international and supranational to national law shows the huge importance of conceptual and comparative research of judicial activism on the border between legal orders and its impact on democracy, separation of powers, and rule of law, which is the overall theoretical concern of this volume.

Part II of the book is devoted to the judicial activism of international and supranational courts and its impact on national constitutional orders. More pre­cisely, the two chapters published in this part focus on the effects of judicial acti­vism of the two most important ‘courts beyond statehood’, namely the European Court of Human Rights and the Court of Justice of the EU. The chapters are united by the common problem of judicial activism of these courts and its impact on the national constitutional orders. Thus, both Di Bitonto and Besirevic explore the increased political influence of the international and supranational courts, their role in contemporary democracies and their standing with the evolving concept of rule of law at the beginning of the twenty-first century.

Both chapters investigate the effects of the jurisprudence of these courts on rule of law and democracy on a national level. However, while Di Bitonto focuses on the influence of case law of the European Court of Human Rights on rule of law, outlining the eventual threats of such an impact on domestic legal order and the principle of legal certainty, Besirevic explores the role of the Court of Justice of the EU as activist promoter of democracy and rule of law in EU Member States, leaning towards populist constitutionalism and illiberal democracies. Hence, a common issue - judicial activism of international and supranational courts - is examined from different standpoints. Some of the authors are rather critical of the judicial activism of the European Court of Human Rights, while others appeal for more activism to the extent of promoting ‘militant’ jurisprudence imposing rule of law and democracy standards on national legal and political orders. Hence, Part II exemplifies the dubious nature of judicial activism as both poison and medicine for constitutional democracy and rule of law. It demonstrates that judicial activism is both shield and sword, cause and remedy for the ‘twilight of constitutionalism’ in the form it has spread as a universal phenomenon during the last century.

This is actually the main value of this part of the book. It offers a critical assessment of the impact of case law in international and supranational courts on domestic constitutional systems, expressing concerns about too much activism or, alternatively, demanding more activism. In that regard, activist, imperial and mili­tant international and supranational courts are praised and criticised at the same time. Such controversial analysis allows for a proper assessment of the role of international and supranational courts in contemporary constitutionalism.

In Chapter 3 Maria Lucia Di Bitonto critically assesses the impact of case law of the European Court of Human Rights on legal certainty as a key element of the principle of rule of law. More precisely, the chapter explores one important aspect of legal certainty, namely the idea and concept of res ludicata in criminal justice in the light of the Italian experience. The starting point of the author’s analysis is the idea of res iudicata as rooted in both traditions of civil law and common law. Di Bitonto’s central claim is that ‘the traditional approach of the criminal justice system regarding res ludicata had been deeply revolutionised after the establish­ment of the European Court of Human Rights - especially after its most recent case law’.

The author offers an informative outline of the normative basis of the problem and the case law of the European Court of Human Rights related to res iudicata. She devotes special attention to the impact of this case law on the reopening of criminal cases and on imprisonment, as well as to the adoption of some normative ideas stemming from it in the jurisprudence of the Italian courts. The chapter concludes by posing the question whether we are exposed to the emergence of a new conception of the principle ne bis in idem.

In Chapter 4 Violeta Besirevic raises a radical claim. It consists of establishing militant democracy in the EU by virtue of fostering a deliberately activist Court of Justice of the EU, possessing the role and features of a militant court. In that

16 See Dobner, P. and M. Loughlin, op. cit.

regard, judicial activism is viewed by the author as a positive phenomenon able to promote rule of law and democracy even beyond the framework of traditional conceptualisation of representative democracy. Hence, Besirevic is inviting us to think outside of the box. She is proposing militant democracy and activist courts focusing especially on the Court of Justice of the EU as devices for protection of the ‘democratic minimum core’.

Besirevic explains the concept of militant democracy, engaging in the debates on the EU’s democratic credentials, the democratic deficit of the EU, the demo­cratic backsliding and the tendency towards illiberalism and populist democracies. Then, the author explores what she defines as ‘CJEU’s revolutionary case law on democracy’. Violeta Besirevic believes that the EU is militant democracy per se. In order to justify her thesis, the author briefly presents the concept of militant democracy. Afterwards, she outlines the EU’s features as a militant democracy while also demonstrating its limits.

Furthermore, Besirevic critically assesses the judicial means for enhancement of EU militant democracy. She focuses on two main instruments for safeguarding rule of law and democracy in the multilevel constitutionalism of the EU, thus also analysing the activist stance of the Court of Justice of the EU in them. In that regard, Besirevic explores the means for enforcing EU democratic values through infringement proceedings as well as by virtue of preliminary rulings.

Violeta BesireviCs contribution is the natural intellectual bond between Part II of the book which addresses the problems of the effects of the judicial activism of international and supranational courts on certainty and proportionality and Part III which explores the impact of illiberalism and populism on the role of courts at the beginning of the twenty-first century. Besirevic pleads for enhanced engage­ment of courts in the promotion of rule of law and democracy, while the next two chapters explore the impact of the illiberal turn on courts. In that regard, the chapters belonging to Part III and written by Kustra-Rogatka and Selejan-Gutan are a logical consequence of BesireviCs Chapter 4, demonstrating some of its important concerns. And, vice versa, BesireviCs chapter offers possible solutions, not undisputable, for the problems exposed by Aleksandra Kustra-Rogatka and Bianca Selejan-Gutan. Thus, all three chapters should be considered an invitation for further discussion on the performance, task and future of courts in the context of illiberal constitutionalism that has gained momentum in recent years.

Indeed, populist constitutionalism and illiberal constitutionalism are massively challenging the central role of courts in constitutional politics. Judicial activism and the political role of courts is largely criticised as incompatible with democracy, separation of powers and popular sovereignty. Indeed, such criticism is justified also from the viewpoint of liberal-democratic constitutionalism. However, the populist and illiberal constitutionalism are targeting not only the excess of judicial activity. They are also questioning the overall legitimacy of the human rights- centred approach to democracy, granting an active protectionist role for courts even at the expense of majoritarian democracy.

In that regard, Part III of the book explores two interrelated groups of issues. These are the attempts of populist governments at curtailing the institutional autonomy of courts and more precisely of constitutional courts, and the illiberal and populist turn of these courts following the general trend towards the estab­lishment of illiberal democracy in some EU Member States. Hence, the chapters written by Aleksandra Kustra-Rogatka and Bianca Selejan-Gutan offer important case studies of the Polish and the Romanian Constitutional Courts and their recent experience with rising illiberalism in the EU on a national level.

In Chapter 5 Aleksandra Kustra-Rogatka explores the status, role and func­tioning of the constitutional court in the context of increasing clashes between liberal and illiberal democracy in Poland. Her main research target is the ‘gradual dismantling of the existing system of checks and balances and the subordination of judiciary power to executive power’, which in her account has been visible since 2015 in Poland. She engages in the debates on the role of courts in the context of constitutional breakdown, constitutional crisis, rule of law crisis, democratic back­sliding, populist backsliding and statutory anti-constitutionalism.^[14]

Kustra-Rogatka explores the shifting role of the Polish Constitutional Court in the context of a process which she defines as ‘illiberal turn’ and ‘counter-constitutional revolution’. This is done on the basis of theoretical engagement with arguments related to Bruce Ackerman’s theory of constitutional moments and other normative theories on constitutional revolution. According to the author, ‘the changes that have occurred in Poland since 2015 should really be conceptualised as illiberal, counter­constitutional revolution. Its aim, despite maintaining the nominal continuity of the system, is to destroy the essence of the current constitution.’

Kustra-Rogatka presents the status and functioning of the Polish Constitutional Court before and after 2015. She provides an important overview of the history of judicial activism of this court starting as early as the last years of the communist regime. She briefly explains the political background of the rule of law crisis in Poland with its impact on the Polish Constitutional Court. Then, she focuses on the political battles over the composition of the Polish Constitutional Court in 2015-2016, which were of key importance for the illiberal turn. Furthermore, the author presents what she calls the ‘final stage of the Constitutional Tribunal take­over’ that occurred in 2017-2018 and the ‘counter-constitutional case law of the Constitutional Tribunal in 2019-2020’. Kustra-Rogatka comes to an important conclusion. In her view, the constitutional dynamics since 2015 have impacted the Polish Constitutional Court in such a way, so that ‘this typically counter-major­itarian institution has radically changed its role. From a fairly activist court, one of the main actors of the political transition of the 1990s, it became a body which post-factum legitimises the systemic changes violating the Constitution of 1997.’

The discussion on the illiberal turn of constitutional courts provided by Violeta Besirevic and Aleksandra Kustra-Rogatka is continued by Bianca Selejan-Gutan. In Chapter 6 she offers an insightful case study on the impact of democratic back­sliding and illiberal and populist constitutionalism on the Romanian Constitutional Court.

Bianca Selejan-Gutan starts with a brief overview of the status, role and functions of constitutional courts in modern European constitutionalism. She emphasises the central role of constitutional courts for the maintenance of rule of law by providing a short introduction to their most important competences and the safeguards for their institutional independence. Selejan-Gutan focuses her attention on the risks of politicisation of constitutional courts. She outlines the most important strategies for their politicisation or, alternatively, for keeping their political independence.

The author engages in the debate on judicial activism. She provides some important insights for the proper scientific qualification of this phenomenon. Prominently, Selejan-Gutan critically assesses the risks of judicial activism in non­consolidated democracies, likening them to a ‘constitutional tsunami'. This is especially problematic in the case of fragile systems of rule of law with a tendency towards judicial activism when the court acts as ‘positive legislator'. In fact, the similar concerns of excessive political engagement of constitutional courts, espe­cially in times of crisis and emergency, are expressed also in Djordje Gardasevic's chapter, as well as in my own.

Selejan-Gutan raises the question whether one can properly qualify the Roma­nian Constitutional Court as an activist constitutional jurisdiction. She observes that during the first period of its existence - 1992-2012 - the Court had been predominantly passive. Then, since 2012, a period of judicial activism emerged during which time the Court was activist and also produced rather inconsistent case law, conceived by the author as a challenge to legal certainty and thus to rule of law. She explores the reasons and the main manifestations of the tendency towards politicisation of the Constitutional Court in Romania in recent years.

Selejan-Gutan explores what she defines as ‘pathology of judicial review'. She focuses on several types of judicial activism performed by the Romanian Constitu­tional Court: activism in the constitutional review of legislation and of constitu­tional amendments in Romania; activism in solving conflicts between authorities; and the role of the Court as ‘activist judge of its own powers'. Thus, Selejan-Gutan offers an insightful case study contributing to the problems of judicial activism, judicialisation of politics, politicisation of the judiciary and legal certainty.

Part III concludes with Chapter 7, which is devoted to the revolutionary role of constitutional courts in Morocco and Jordan. Its author - Hadeel S. Abu Hus­sein - explores the impact of the introduction of constitutional justice and the constitutional courts as novel institutions on democracy and rule of law in the Middle East and North Africa region. Actually, she demonstrates the revolutionary impact of the very fact of the introduction of this institutional novelty of the constitutional design on the prospects of furthering the constitutional democracy.

Chapter 7 combines theoretical and comparative reflections with two important case studies of Morocco and Jordan. The author compares the impact of the introduction of constitutional courts in the constitutional systems of these two countries. She focuses on the revolutionary role of the constitutional court in Morocco and Jordan as well as in the whole Middle East and North Africa region as protector of freedom, individual rights and human rights. The analysis is put in the context of the post-Arab Spring developments. Abu Hussein explores the political continuity and rupture of the Arab Spring and its impact on the intro­duction of constitutional justice in the focus countries. She analyses the reasons of the leaning of these two constitutional courts towards judicial self-restraint and the perspective for their engagement in judicial activism in the future. The chapter concludes with some reflections on the future of the Arab constitutional courts.

The novelty of the chapter is predetermined by the fact that the problems of constitutional justice in these two countries are rather under-researched. Thus, Abu Hussein’s chapter is a valuable contribution in the overall discussion in transitology and transplantology regarding the effects and efficiency of transplanting Western institutional design - in this case the centralised model of constitutional justice concentrated in constitutional courts - in a non-Western context: the constitutional monarchies of Morocco and Jordan. Her chapter is embedded also in the discourse on the role of courts in authoritarian and illiberal constitutional orders, thus spreading the discussion beyond the EU context.

The book concludes with Part IV, which is devoted to the topical issues of judicial activism in times of pandemic. This part of the book explores the perfor­mance of constitutional courts in extraordinary and emergency situations. Indeed, the focus is on pandemic constitutionalism and the case law of the courts on issues stemming from the Covid-19 regimes established in 2020. However, they set the problems of judicial activism as a response to pandemics in the broader context of judicial activism related to all types of emergencies.

Chapter 8 explores the activist role of the Bulgarian Constitutional Court in mas­tering emergency situations. In this chapter I critically assess the judicial activism of the Court in shaping and further developing by virtue of activist interpretation the constitutional provisions related to emergency situations: war, state of siege and state of emergency. Hence, the chapter explores the contribution of the Constitutional Court in emergency constitutionalism and emergency constitutional politics. It pro­vides a case study which is focused on Bulgaria and the activity of the Bulgarian Constitutional Court.

The activist case law of the Court in the spheres of constitutional emergency showing its appetite for emergency constitutional politics, frequently in cooperation with the government, is contrasted with its reluctance in engagement in judicial dialogue with international and supranational courts. The chapter demonstrates that the Bulgarian Constitutional Court is a key player in shaping and further developing the constitutional model of separation of powers. This practice contravenes the principles of popular sovereignty, democracy and separation of powers.

The focus of the chapter is on the activist engagement of the Bulgarian Constitutional Court in reshaping the constitutional competences of key state insti­tutions via activist interpretation of constitutional provisions related to emergency situations (war, state of siege, state of emergency) and to the institutional design of the national defence. The chapter opens with an outline of the constitutional model for crisis management provided by the 1991 Bulgarian Constitution. It offers struc­tured information regarding the regimes for crisis management enshrined in the Bulgarian Constitution as instruments for mastering of emergency situations. Hence, I am outlining the emergency constitutional politics and emergency constitutional regimes serving as a playground for judicial activism and, alternatively, being them­selves framed and shaped by activist case law of the Bulgarian Constitutional Court. I outline the reasons for the judicial activism of the Bulgarian Constitutional Court, its activist role in shaping and mastering military emergency situations and health-related emergency situations. Against this background I substantiate the claim of uncon­stitutionality of other emergency regimes created by virtue of the ordinary legislation and subsequently legitimated by activist jurisprudence of the Constitutional Court.

Special emphasis is placed on the judicial activism of the Bulgarian Constitutional Court related to mastering of emergency situations. The activist stance of the Court regarding issues of war, state of siege, state of emergency and other - in fact uncon­stitutional - regimes of emergency measures such as the ‘extraordinary epidemic situation’ and the ‘state of disaster’ is explained. The focus of the chapter is on the introduction of the ‘extraordinary epidemic situation’ by virtue of legislative amend­ments which are declared to be in compliance with the Constitution by the Bulgarian Constitutional Court. In the chapter I demonstrate why this is not the case.

Finally, in Chapter 9 Djordje Gardasevic explores the judicial activism of the Croatian Constitutional Court during the Covid-19 pandemic. Hence, the chapter addresses the issues of emergency constitutionalism and health emergency-related case law of constitutional jurisdictions challenging rule of law, separation of powers and democracy. It explores the impact of the Covid-19 crisis on the Croatian constitutional order as a stress test for the engagement of the constitu­tional court in constitutional politics. It demonstrates the risks to democracy and rule of law of unbalanced case law of the courts, especially in times of emergency.

The analysis commences with an outline of the constitutional framework of the state of emergency. Gardasevic makes the reader acquainted with the approach of the Croatian authorities in tackling the Covid-19 pandemic and its effects on constitutionalism and constitutional law.

Gardasevic thoroughly explores the pandemic case law of the Croatian Con­stitutional Court. He critically assesses the approach of the Court to the problems of emergency constitutionalism through the prism of judicial activism and on the basis of arguments based on democracy and rule of law defence. The author out­lines the main arguments presented in the opinion of dissenting judges, which gives a multifaceted and balanced approach to this topical issue.

Gardasevic offers critical reflections on the rule of law and its ‘emergency excep­tions’. He engages with theories of emergency and discretionary powers provided by key authors in the constitutionalist and political philosophy discourse, such as J. Rousseau, J. Locke, C. Schmitt, A. Hamilton, C.L. Rossiter and C.J. Friedrich. Thus, Gardasevic provides a solid conceptual basis for assessing the constitutional provision, legislative developments and constitutional court’s jurisprudence on state of emer­gency, evaluated against the background of emergency constitutionalism, political discretion, state of exception and ‘constitutional dictatorship’.

The crisis conditions seem to endure and determine the socio-political con­ditionality of constitutionalism at least for the recent future. Thus, they will also put our constitutional orders to systemically stress-test the results, which will show whether liberal constitutional democracy will continue to be the main normative and conceptual model for ordering Western societies. In that regard, constitu­tional responses will be needed and they will most likely be given not only by genuinely political players, but also by expert institutions, including the courts.

In fact, we have been living in an almost permanent crisis situation since the beginning of the twenty-first century. The century commenced with a horrible opening - the 9/11 terror attacks - that has served as justification of the ‘war on terror’, which has triggered a range of anti-terrorist emergencies and extraordinary measures. Then, in 2009, the financial crisis hit the world, having a severe impact on Southern Europe. In such a context, the financial austerity measures have been imposed, structured mostly around the ‘balanced (or golden) budget rule’. Hence, a second wave of emergency - the financial emergency - followed the first wave of anti-terrorism emergency. The next wave of emergency started spreading in the Global North (and especially in Europe), mainly after 2011. This third consecutive emergency measures were triggered and justified on the basis of the migration crisis. Finally, at least for now, we have witnessed a fourth big wave of emergency measures produced by the global Covid-19 pandemic.

The four emergency waves came one after the other. However, they also coin­cided with each other, thus having a mutually reinforcing negative impact on lib­eral-democratic constitutionalism. They served as reasons for the introduction of emergency measures that have contributed to the rise and spread of four main types of emergency constitutionalism: anti-terrorist emergency constitutionalism, financial emergency constitutionalism, migration emergency constitutionalism and health emergency constitutionalism. At the same time, during the last decade the world has witnessed the (re-)emergence and spread of illiberal and authoritarian constitutionalism paralleled by processes of democratic backsliding.

In such turbulent times, when emergency is the ‘new normal’ and the ‘sea of life’ is constantly hitting us with a series of emergency waves, the ‘sand castles of liberal democracy’ - the courts - may, should and do play a central and even crucial role. This is especially visible with regard to the ‘apex courts’ (the constitutional and supreme courts), but is also important for the ordinary courts, although their activity lies beneath the constitutional surface.

The impact of courts on contemporary constitutionalism is multilayered and varying. Judicial activism is sometimes, to an extent paradoxically, masquerading as judicial self-restraint. Judicial activism has both supported the rule of law and promoted human rights. Nevertheless, it has also impacted in dubious ways democracy, separation of powers and human rights. Courts were both guardians of liberal-democratic constitutionalism and bastions against populism, but also promoters of illiberalism and contributors to democratic backsliding, especially in times of crisis and emergency. They were both key safeguards for human rights in times of pandemics and the illiberal turn that they triggered and enhanced, but also promoters of illiberal trends towards pandemic illiberalism and emergency anti-constitutionalism.

Consequently, it seems that the debates on judicial activism and its impact on rule of law, separation of powers, democracy and human rights will remain topical for years to come. Special attention should be devoted to the impact of judicial

Introduction 17 activism on the rule of law and its core elements: legal certainty, legal predictability, and the proportionality of the limitations of human rights. The rather traditional debate on judicial activism should be embedded in the context of emergency con­stitutionalism and has to critically assess challenges stemming from the new forms of illiberalism and authoritarianism it promotes. The debate will be of crucial importance for both theory and practice because it is related to the key dimensions of the endurance of constitutionalism, rule of law and democracy. This book should be considered as a modest attempt at engaging with some of the topical issues related to the role of courts in policy-making in a time of illiberalism and emergency con­stitutionalism exploring judicial activism under crisis conditions.