Introduction
‘Judicial activism’ or ‘judicialisation of politics’ indicates the leaning towards the political game on the part of judges, in particular those sitting in the highest courts. Though not being a novelty of our times, the role that the judicial bodies play in the political arena has become one of the hottest topics of debate in the legal world in the last decades.1 For reasons which will not be explored in this chapter, many Constitutional Courts in the Western or Western-like democracies have become increasingly ‘active’ by furthering their activities in a law-making direction and offering authoritative interpretations of the valid law, different from that of other actors at the top of the constitutional structure which are institutionally devoted to law-making (e.g., the national assemblies or the executive branch).2 In other words, many Constitutional Courts have shifted their ‘recognised’ role of being the authoritative interpreter of the law, in light of the
1 See Ran Hirschl, The Judicialization of Politics, inR.
E. goodin (ED.), the oxford handbook of political science, 2011, Oxford: Oxford University Press, 253. See, eg, European COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), THE BINDING EFFECT OF FEDERAL CONSTITUTIONAL COURT DECISIONS UPON POLITICAL INSTITUTIONS (available at www. venice.coe.int/docs/2003/CDL-JU(2003)018-e.pdf); or Sandra Day O’Connor, Importance of an Independent Judiciary, in webcast - conference on the state of the JUDICIARY - IMPORTANCE OF AN INDEPENDENT JUDICIARY (available at www.law.georgetown. edu/webcast/eventDetail.cfm?eventID=178) (‘Directing anger toward judges has had a long tradition in our nation... While scorn for some judges is not altogether new, I do think that the breadth of the unhappiness being currently expressed, not only by public officials but in public opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern.’). As to judicial activism in history, see, eg, the French loi des 16-24 aout 1790 sur L’ORGAnisa- tion judiciaire, 1790, tit. II, art. 12 (available at https://www.legifrance.gouv.fr/affich Texte.do?cidTexte=JORFTEXT000000704777); or the famous marburyvmadison, 5 u.s. (1 cranch) 137 (1803) (available at http://cdn.loc.gov/service/ll/usrep/usrep005/ usrep005137/usrep005137.pdf).2 See, eg, Richard A. Posner, The Supreme Court 2004 Term-Foreword: A Political Court, 119 harvard law review 35-39 (2005); or Michael Hein, The Least Dangerous Branch? Constitutional Review of Constitutional Amendments in Europe, in M. belov (ED.), COURTS, POLITICS AND CONSTITUTIONAL LAW: JUDICIALIZATION OF POLITICS AND POLITICIZATION OF THE JUDICIARY, 2020, Abingdon: Routledge, 187-206.
DOI: 10.4324/9781003200666-3 constitutional documents, towards the middle of the institutional map of a democracy based on the rule of law. Thus, they have grown more distant from the legal arena (as the ultimate authority on what constitutes valid law) and closer to the political one (by limiting and/or expanding the operating space of the political actors and their legislative tools).
As can be understood from this concise introduction, judicial activism (in particular on the part of the highest courts) focuses primarily on the relations between law and politics. Therefore, the main purpose of this chapter is to evaluate whether Constitutional Courts should be considered legal actors simply enforcing what is written by political actors in statutes and constitutions, or institutional actors with a predominantly political nature, determining what the law should say. In order to achieve this, the investigation will not only focus upon the function that Constitutional Courts play, between law and politics, but also on their institutional positioning.
The basic thesis of this chapter 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.
Without a doubt, these Courts play a role in the political game; however, their position as an institutional actor should be based upon the direct effects of their decisions (‘outputs’) on the legal arena, rather than on the indirect consequences (‘outcomes’) on the political arena. As a consequence, the Constitutional Courts’ primary responsibility is towards the legal community and the paradigms governing its discourse.This chapter makes no pretensions on providing any final words either in the discussion on judicial activism or in respect of the relations between the legal and political worlds in general. First, the focus here is solely on Western (or Western-like) legal systems. Second, this work has a more limited objective of contributing to clarifying the terms of the discussion, in particular by finding a solid basis (at least from a legal perspective) upon which to begin the discussion on whether judicial activism is good or bad. In other words, this investigation is primarily to clarify what is meant when the legal discussion deals with the ‘political’ in the work of Constitutional Courts.
While in section 2 certain key concepts used in this chapter are defined, the focus in section 3 is on a feature of Constitutional Courts in well-established Western democracies, namely their positioning in between the legal and political arenas. The final sections 4 and 5 then identify why the characterisation of Constitutional Courts, as either legal or political actors, is relevant from a legal perspective, both in descriptive and normative terms. These parts also explore how it is possible to resolve the dilemma of ‘legal vs. political actors’ by defining Constitutional Courts as legal actors performing a political function.
3 See Joseph Raz, On the Nature of Law, in j. raz, between authority and interpretation - on the theory of law and practical reason, 2009, Oxford: Oxford University Press, 99-100. See, e.g, Julien Mouchette, The French Constitutional Council as a Law-Maker: From Dialogue with the Legislator to the Rewriting of the Law, inM. FLORCZAK-WATOR (ED.), JUDICIAL LAW-MAKING IN EUROPEAN CONSTITUTIONAL COURTS, 2020, London: Routledge, 9-27; or Harvie J. Wilkinson, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Virginia law review 275-288 (2009).
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