A definitional framework
Before we delve into the topic at hand, some key concepts used in this text must be clarified. First, judicial activism, sometimes referred to by other words (e.g., ‘constitutional politics’, ‘government of judges’, or ‘judicialisation of politics’), identifies the general phenomenon - typical of (but not limited to) well-established Western democracies - when ‘courts impose a judicial solution over an issue erstwhile subject to political resolution’ by intervening against and striking down a part of properly enacted legislation, or by ‘legislating’ in an area in the absence of legislation.[15] Judicial activism thus identifies a judicial activity directed at stretching the formal structures and the letter of the law in order to fill gaps (or what are perceived as gaps) left by politicians.
The judges take a more ‘active’ stance towards law-making (in particular in its legislative form), in order to implement values that the political actors are unable to sense in the community or are unable to transform into legislative measures, or that are part of the political baggage of certain judges.[16] Usually, the courts find support for their new course in the foundational structures of the legal system, e.g., the constitution or international treaties. In other words, judicial activism refers to the complex of judicial activities through which the judges consciously and explicitly take upon themselves a power that has traditionally been left to other institutional actors, e.g., the political actors sitting in the national assemblies or (to a lesser extent) the public administration. In doing so, the courts are guided by the idea that their primary role is neither to find the true intention of the legislative bodies nor to review the work done by the public agencies. Instead, they intend to act as guardians of the legal system as a whole, by positioning themselves as a third party and solving disputes in the light of fundamental legal principles which have not been contemplated by the legislative bodies and/or which have been neglected in administrative practice.Second, when referring to Constitutional Courts, this includes all the highest courts that - under varying names (e.g., High Council or Supreme Court) - have among their primary legal duties the jurisdiction to evaluate the constitutionality of the law, i.e, the consistency or conflict of legally relevant documents produced within a certain legal system in relation to the basic legal documents of that community. Such courts are also characterised, at least with respect to conducting constitutional reviews, by being positioned outside the ordinary court system, in a sense, and by their work being completely independent (at least in its modality) from the other branches of the state.[17] It is worth noting that several types of Constitutional Courts can find a place under this definitional umbrella. In particular, this definition allows placing under scrutiny both Constitutional Courts that have an abstract review competence (i.e., when a Constitutional Court is asked to determine the compatibility of statutory law with the Constitution at the request of non-judicial public bodies, eg., a law-drafting committee of the national assembly or a regional government), and those that have a more concrete review power (i.e., when a Constitutional Court’s review jurisdiction is activated by a party to litigation, or by a lower judge, stating that a law violates the constitutional texts).[18]
Third, the definition of political actors adopted here is fairly different from that used by the other discipline that also investigates the role of Constitutional Courts in and in relation to the political system, namely political science. While for the latter, political actors are more or less identified as all institutional actors that ‘make the law’, the term in this chapter is intended from a more legal perspective and refers to a narrower range of institutional entities whose primary goal is to see their values implemented into a community by making use of the legal apparatus and system, e.g, political parties or interest groups.
Political actors can (and usually do) have a primary goal of a non-legal nature (e.g, an economic or social nature) and therefore, in their operations, mainly take into consideration the environments surrounding the legal arena, e.g, the political or socio-economic ones. Moreover, their primary intention is to influence people into adopting a certain model of behaviour by convincing the addressees of the ‘inner goodness’ of their model.[19]Lastly, particularly in Western legal systems, legal actors can be defined as institutional actors primarily aiming at influencing the legal system, and therefore mainly focusing on the latter’s logical structure. As for political actors, the main goal of legal actors is to exercise power, i.e., to force people to do things that they otherwise are not willing to do. As pointed out by Hans Kelsen, both law and politics try to make people do something, the law being ‘a social order, that is to say an order regulating the mutual behavior of human beings’.9 However, legal actors, when dealing with a statute or legal precedent, consider these normative documents as exercising their (binding) power on the addressees only as (and as long as they are) part of a larger hierarchical system of norms with a similar (legal) nature, and with specific (legal) rules to be used for interpretation, application, and creation (legal reasoning).10
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