‘Political vs. legal nature' as to the Constitutional Courts
Shifting attention to the topic central to this work, namely whether Constitutional Courts should be defined as primarily legal or political actors, a first reaction could be to question the importance of this issue.
It appears to be a purely terminological matter, as the competence and jurisdiction accorded to Constitutional Courts, at least in well-established Western democracies, tend to be the same from a legal perspective, regardless of whether they are considered more political or more legal actors operating inside a certain system of powers. Whether they are seen primarily as legal or political actors, justices sitting on the highest benches will always be in charge of determining the constitutionality of statutes and, by doing this, will always be influenced by the political environment and prevailing political ideologies.[40]However, the question presented here is not simply a definitional or academic problem. As often happens in legal matters, defining something or someone means attributing it with certain legal areas of competence and jurisdiction and, at the same time, limiting its capacity to operate in other legal areas. In other words, when it comes to legal issues, the classification of either a problem or a subject matter means shaping it and, at the same time, restricting it.[41]
If one considers in particular Constitutional Courts and the definition of their nature as actors working in a certain environment, it has previously been seen that among their central tasks is ‘checking’ that the transformations of ideologies or values into law are done in accordance with (or at least not in gross contradiction of) the basic and often politically formulated principles enumerated in the constitution or fundamental laws of a certain community. The characterisation of Constitutional Courts as being either legal or political actors brings with it the identification of fundamental criteria, or in Max Weber’s terminology, ‘rationalities’, that ought to govern this control over the constitutionality of the lawmaking that takes place in a certain legal system.[42] By normatively defining the nature and function of Constitutional Courts (i.e., what they ‘ought’ to be and to do), it becomes possible to answer the following normative question that is fundamental for every democratic legal system: What is the fundamental criterion that ought to guide a Constitutional Court when performing its task of constitutional review?
Considering that Constitutional Courts operate between the legal and political worlds, it is possible to identify two fundamental criteria, or rationalities, which could shape Constitutional Courts in their work.
First, at least when seen from a legal perspective, Constitutional Courts have the option to primarily embrace a Weberian substantive rationality in order to resolve issues of constitutionality.[43] This choice would mean that, in order to reach the ‘best’ solution, justices would regard the legal system as primarily instrumental to the fulfilment of certain goals external to the system itself. In other words, Constitutional Courts ought to be ready to ‘sacrifice’ the internal rationality and rules traditionally superseding Western legal systems and reasoning, if and as long as this capitulation is directly functional to achieving the political, social and economic values the courts intend, on various grounds, to insert into a certain community.However, there is another possible ideal-type rationality or criterion that may guide Constitutional Courts in their work. As pointed out by Weber, in modern capitalist societies, the fundamental criterion inspiring the work of legal actors is formal rationality: they reach a decision or a legal solution based on the logical criteria internal to the legal system and with the purpose of maintaining its consistency, regardless of the actual effects in the surrounding environments.[44] This respect for formal rationality (or ‘legality’) is and ought to be, as Weber stated, because it is directly functional and fundamental for legal actors (and judges in particular) in order to gain and maintain their legitimacy, i.e., a high degree of probability that their decisions will be observed by the majority of addressees because they are considered ‘correct’ and therefore binding.[45]
The characterisation of a certain actor as legal or political is then always fundamental, at least from a legal perspective, in order to attach to a certain actor a certain criterion (or type of rationality, as in this chapter) that should guide it in its operations. This definition, however, is even more important in the case of Constitutional Courts, due to the position such courts occupy in modern democratic forms of political organisation.
Constitutional Courts are certainly not the only actors whose nature can be and is widely disputed. For example, the legal nature of in-house attorneys is often heavily questioned; they are sometimes treated as simply facilitating a legal cover-up of economic and political programmes.[46] [47] However, the theoretical issue of normatively defining Constitutional Courts is fundamental: the decisions of these courts (and consequently the criteria inspiring them) are those that can shape the fundamental legal, but also political and social, features of an entire community, sometimes even more than the decisions made in the democratically elected assembly. For example, in deciding Brown v. Board of Education (1954), the Supreme Court of the United States shaped (at least as much as Congress did ten years later with the 1964 Civil Rights Act) the future of an entire national community as far as concerned unlawful structural discrimination based on ethnicity.It is also true - using Ronald Dworkin’s famous metaphor - that Constitutional Courts write just one chapter in the chain novel that constitutes the valid law, since, after their decisions, their words will be interpreted by all the other actors, e. g, legal scholars, lower judges and law-makers.[48] However, even if the subsequent actors write a ‘different’ continuation of the novel, it is the Constitutional Courts that have the privilege of setting the agenda for future discussion.[49] For example, with Brown v. Board of Education, the US Supreme Court definitively opened the door to de-segregation, i.e., it gave a strong push to put into the trash can all the attempts to retain in American society the racist principle ‘separate but equal’.
Many other aspects, of both political and legal character, underscore the necessity of coming forward with a clear definition of what kind of actors Constitutional Courts should be. From a political perspective, the definition of a Constitutional Court is important as it clarifies, and therefore partially prevents, possible points of collision between the highest powers in a community.
Pointing out the basic features and criteria that should inspire the work taking place in the courts allows for a better and more precise control of the activity of the courts by political authorities, e.g., in the form of offering a clear matrix to parliamentary committees or investigators against which to evaluate certain constitutional judicial decisions. In other words, this definition more clearly pinpoints a fundamental actor on the political map, either as primarily promoting certain ideologies that vary over time (if defined as a political actor) or as primarily attempting to maintain one single and established legal ideology, namely the rule of law (if defined as a legal actor).Characterising the nature of Constitutional Courts is also important from a legal perspective, as this allows normative fixing of what type of rationality Constitutional Courts ought to apply in their work. At one end, justices sitting on the highest benches may be defined primarily as legal actors. Accordingly, from a legal perspective, the legality of their decisions in ‘hard cases’ can and should be questioned, even by lower courts, when their legal reasoning is mainly grounded on the goal of implementing values they consider as immanent in a community, although such values do not explicitly appear in the constitutional documents or fundamental laws. This critique of the legality of their decisions can and ought to be performed, in particular when the realisation of values is done at the expense of the traditional criteria superseding the legal reasoning (e.g., consistency or respect for previous decisions on similar matters), i.e., the only type of reasoning on which legal actors in modern democracy have a legitimate domain. For example, if a court decides within a quite narrow timeframe in diametrically opposite directions in similar cases or issues, it can be directly criticised from a legal perspective for violating a fundamental principle of Western legal systems, namely equal treatment of individuals under identical circumstances.
At the other end, in the event that Constitutional Courts are defined primarily as political actors, the possibility of holding them responsible from a legal perspective for doing something ‘illegal’ is more restricted. If they are considered political actors, it is not possible to ‘force’ the courts to decide in accordance, or at least in consistency, with previous decisions, although it is always possible to legally criticise Constitutional Courts for violating certain basic rights guaranteed in the constitution. One privilege accorded to political actors in general is that they can change their value system without being held responsible (at least legally) for this. If a political party or national assembly decides to pursue values other than those previously planned, it cannot be criticised or held responsible from a legal perspective.4
Lastly, another element highlights the importance of normatively setting the nature of Constitutional Courts in Western legal systems. These courts symbolise (and stretch to the limits) an underlying feature typical of most legal actors operating in contemporary Western legal systems: their position in between the political world, where values (or models of society) are created, and the legal world, through which those values have to pass in order to be implemented into a community.
Each of the individuals forming the skeletal structure of the legal actors is educated in the law and such an education is almost always a formal requirement to becoming a part of this group of actors. The individuals composing the legal actors are, in other words, all educated in the idea that law, although highly politicised, has certain features that distinguish it from purely political statements.[50] [51] For justices working in Constitutional Courts, it is the same as for most legal actors: they operate within the legal system, but with the knowledge that law is instrumental in order to introduce into a community models of behaviours or values embraced by their political source (e.g., legal experts working in political parties) or their economic source (e.g., in-house attorneys for large corporations).
This feature of the law in the Western legal systems, i.e., always being functional to something else, then forces legal actors in general to always take into consideration the value systems (and the underpinning ways of reasoning) affecting the origins, development and environment in which the making or application of the law is taking place.[52]In short, the importance of defining Constitutional Courts as either legal or political actors lies also in the fact that such institutional actors represent, better than many others, the difficult situation in which lawyers in general operate nowadays. While they are educated in the law and employed to build, interpret and apply the law, legal actors operate under a constant and extreme pressure that pushes them towards a disregard for what are considered the characterising elements of a Western or Western-like legal system (predictability, certainty, rule of law and so on), in order to instead fulfil political (or non-legal) goals.[53]
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