A possible solution

Section 4 (Constitutional Courts between law and politics) showed how Constitu­tional Courts can be considered as actually belonging to the legal world, but strongly leaning towards the political arena.

It is helpful here to start by taking a slight detour to a sociological distinction between the institutional (or organisational) position (or status) of a certain actor (or agent) and the function-effects of that actor’s work.^[54] By the “institutional position” I mean the position occupied by a certain actor operating inside a larger environment (or organisational structure).^[55] This positioning, as far as concerns judicial bodies, is mainly a combination of the operation of two (often over­lapping) factors: the degree of legitimacy that judicial bodies enjoy, indicating where along the spectrum of power judges are inserted (vertical positioning), and the distribution of power as sanctioned in the law, which indicates where, at the stage assigned by the legitimacy, the judicial body is located (horizontal position­ing). The function-effects of an actor’s work simply refers to the impact that the work of the actor has on the environment.^[56] These effects can be of different ideal-typical natures. They can be intended, where they correspond to the original goal that the actor had in mind when starting the work, or unintended, where they do not (fully or partially) correspond to the original motive of the action.^[57] Effects can also be in the form of either outputs or outcomes^[58] Outputs are the impacts (intended or unintended) a certain action has inside the ideal-typical arena in which the action has taken place (e g, the effect of a court decision on the legal right of the convicted party to appeal).

If one considers Constitutional Courts in light of these distinctions between institutional positions and function-effects (and the different types of effects), one can see that the dominant features of the courts are of a legal nature. Starting from the institutional position, Constitutional Courts are, first and foremost, ‘courts’. This label means that their rulings are considered binding by the vast majority of the addressees, not because of the content of the decisions, i.e., the models of beha­viours they aim to impose on a community, but because they are legal normative decisions. This means that they are rulings that ought to be obeyed because they are produced by a legally formed body, which is entrusted, in the forms prescribed by the law, with the legal power to produce such binding decisions. In contrast to political actors, such as political parties or lobby groups, the consideration and respect for the work of Constitutional Courts is not mainly based on the intrinsic values promoted by its decisions, such as the ‘popularity’ of a certain political pro­gram, for example. The respect, or legitimacy, is given to the decisions due to the legal form such rulings take, and the forms that have been observed while producing the decisions and choosing the individuals (i.e., judges) in charge of making such decisions. In other words, Constitutional Courts keep their position and ‘job’ in the community as the highest dispute-resolving actor as long as they are able to maintain their legal legitimacy, i.e., a legitimacy gained in Western legal systems mostly by observing the paradigms of formal legal rationality (or ‘legality’).^[60]

Naturally, this pushing of the Constitutional Courts into the ‘legal box’ cannot ignore the fact that justices have political sympathies.

As to their function, if one starts by considering the intended and unintended out­puts of a certain decision by a Constitutional Court, the primary arena of operation of Constitutional Courts is the legal one. A Constitutional Court, per definition, evalu­ates legal issues, in particular the potential unconstitutionality of statutes or acts from law-making agencies. The outputs of the courts’ deliberation are to decide whether certain legal rules of a lower dignity can still be considered as ‘binding and therefore existing’ legal rules. In particular, Constitutional Courts ‘prove’ the existence of these rules by evaluating whether they are compatible with the fundamental rules and principles enumerated in (or somehow derived from) constitutions and fundamental laws. This test, as pointed out before, is a typically legal problem since it can operate if, and only as far as, one axiomatically accepts the existence of an ascending structure of rules, where the lower rules, in order to exist as legal (and therefore binding) rules, cannot be in conflict with the higher ones.^[62]

As pointed out by Kelsen and other legal scholars, this presupposition is typical of the legal arena.⁵⁴ By contrast, the hierarchical structure in the political arena, though present (e.g., basic values vs. tactical choices), is not fundamental to give ‘validity’ to the lower types of decision. Tactical decisions taken by a congressional party are still considered ‘valid’ for the political line of a certain party (e.g., because such tactical decisions can strengthen the party’s positions in an upcoming elec­tion), even if they are contrary to the fundamental values contained in the party programme.

In contrast to political actors, Constitutional Courts are not totally free from what can be defined as the external borders of legal reasoning. ‘External borders’ are identified in particular as the no-cross limits of the legal culture of a certain community, limits which have to exist in order for the legal system as such to survive.⁵⁵ In a democratic free-market regime, for example, these no-cross borders can be defined as the fundamental legal principles (e.g., protection of private property) expressing the bedrock of political, cultural and economic forces upon which the regime itself is created and to which it is functional.⁵⁶

Political actors do not necessarily have to respect such external borders of legal reasoning. Actually, for many political parties, the primary and fully politically legitimised goal for their existence is to change or shift such external borders, for example by eliminating the legal protection accorded to private property. The situation changes if one moves the focus to the outcomes of the decisions taken by Constitutional Courts, i.e., the effects (intended or unintended) that their deci­sions have on the (non-legal) environments surrounding the (legal) one in which the courts operate. It is easy to see how the legal feature characterising the func­tion played by the Constitutional Courts here tends to disappear. Decisions by Constitutional Courts almost always have effects outside the legal world, e.g., in the cultural, economic or political spheres.⁵⁷ In other words, as far as concerns the

comprehend something legally can only be to comprehend it as law’). See also- luhmann, law as A social system, supra at 406-407.

54 See KELSEN, GENERAL THEORY OF LAW AND STATE,supra at 110-113. See also KELSEN, THE pure theory of law, supra at 3-4 and 19; Robert s. summers, form and function in a legal system: a general study, 2006, Cambridge: Cambridge University Press, 313; and Neil MacCormick, Natural Law Reconsidered, 1 oxford journal of legal studies 108 (1981).

55 See hart, the concept of law, supra at 193-200; and Herbert L. A. Hart, Problems of the Philosophy of Law, in h. l. a. hart, essays in jurisprudence and philosophy, 1983, Oxford: Clarendon Press, 112 (as to his idea of ‘minimum content of natural law’). See alsoTUORi, critical legal positivism, supra at 177-183 (as to his idea of the ‘general legal principles’ of the legal culture).

56 See, e.g, JEREMY WALDRON, THE RULE OF LAW AND THE MEASURE OF PROPERTY, 2012, Cam­bridge: Cambridge University Press, 103; or Neil MacCormick, MacCormick on MacCormick, inA. j. menendez and j. e. fossum (eds.), law and democracy in neil mac- CORMICK’S LEGAL AND POLITICAL THEORY - THE POST-SOVEREIGN CONSTELLATION, 2011, Dordrecht: Springer, 23.

57 From a legal theoretical perspective, this different kind of effect (output as legal and outcome as non-legal) can be considered a consequence of the more general distinc­tion between the normative and social functions of the law. See Joseph Raz, On the outcomes of their decisions, Constitutional Courts have certain similarities with political actors, such as the government or national assemblies. What is more, Constitutional Courts with their decisions ultimately attempt (consciously or unconsciously) to impose certain models of behaviours or values upon a community.

Despite this leaning into the political arena, Constitutional Courts should be considered to have a legal nature, i.e., as legal actors (and act as though they are). First, the grouping of an actor under a certain terminological roof has to be done primarily based on its institutional location and the function-effects of its work, in particular the intended outputs that its actions produce.⁵⁸ If one were to look at the outcomes, the analytical possibility of grouping actors in ideal-typical arenas, and the resulting possibility of identifying some normative criteria upon which to evaluate and criticise their work, would disappear. Outcomes of decisions almost always tend to spread in different directions and, especially for unintended out­comes, it is often not possible to determine in which area a certain action has had its major impact, particularly after a long period of time.

It goes without saying that the positioning of Constitutional Courts among legal actors (and the subsequent imposition of legal criteria in order to evaluate their work) does not rule out the possibility that they can (and often do) play a political function. As already stated, all legal decisions have certain outcomes, but Constitutional Courts, due to the task assigned to them in the constitutional architecture, make their decisions by looking to the legal outputs, namely the constitutionality or not of certain provisions. As stated by a legal scholar, ‘[c]ourts legislate, but that does not make them legislatures’.⁵⁹

Functions of Law, ink. W. B. SIMPSON (ED.), oxford essays IN JURISPRUDENCE (SECOND SERIES), 1973, Oxford: Clarendon Press, 280.

58 See, e.g, lopeman, the activist advocate, supra at 3-5 (as to the idea that judicial activism is primarily ‘intentional activism’). But see Christopher H. Schroeder, Causes of the Recent Turn in Constitutional Interpretation, 51 duke law journal 352-353 (2001) (as to the difficulty to disconnect the legal reasoning leading to the legal out­puts from the desired non-legal outcomes when it comes to constitutional interpretation).

59 Herbert M. Kritzer, Martin Shapiro: Anticipating the New Institutionalism, inN. maveety (ED.), the pioneers of judicial behavior, 2003, Ann Arbor: University of Michigan Press, 409. See alsoNEiL maccormick, questioning sovereignty, 1999, Oxford: Oxford University Press, 11-15 (as to the fundamental ontological difference between the legal and political discourses); and luhmann, law as a social system, supra at 162-165. But seesTONE sweet, governing with judges, supra at 61. ComparejEROLD WALTMAN, PRINCIPLED JUDICIAL RESTRAINT: A CASE AGAINST ACTIVISM, 2015, Basingstoke: Palgrave Pivot, 58-61 (with a critical perspective as to the negative effects of intro­ducing the legal paradigms employed by the judiciary into the political discourse).

Justices sitting on the highest benches certainly can (and often do) have a poli­tical agenda, but they are still forced to confront it with the legal system and its dominating principles. An inverted example can be seen among the members of parliament. They are unquestionably political actors with a clear political agenda, but they still sometimes play a very relevant legal function, and this is done in accordance with a specific legal agenda, i.e., in accordance with legal criteria as to how the legal system or part of it should look. For example, this functional leaning into the legal world may happen when members of parliament in a special com­mittee evaluate the legal limits of criminal liability attached to the highest position of the state, such as the President of the Republic or the Prime Minister.

Moreover, and connected to the latter, the legal features of Constitutional Courts are traceable to the fundamental ideology shaping their work. Justices working in Constitutional Courts operate in an environment which, though with many political passersby, has a primary legal task: to be the guardian ensuring that the law-making taking place in a certain state is done (or that a conflict among the highest public authorities is settled) in accordance with the highest rules fixed in the constitutional documents or fundamental laws. This task of Constitutional Courts is legal, in the sense that it consists of dealing with legal rules. When jus­tices sit on the bench, they are assigned the primary task of checking the ‘con­stitutionality’ of certain legal rules: they ought to evaluate whether, from a legal discourse perspective (i.e., with the traditional rules regulating the legal reason­ing), such legal rules can fit (or not) into the legal system as designed in the con­stitutional documents or fundamental laws. Obviously, justices are often well aware of the indirect political effects of their decisions (outcomes), an awareness that sometimes affects their settling on a certain solution instead of another. However, regardless of any hidden agenda behind a certain decision, justices are always forced to ‘squeeze’ their politically motivated decisions into boxes of legal justification, to whose fundamental principles and ways of reasoning the justices ought then to sacrifice (in case of conflicts) their political programs.^[63]

In other words, in order to keep their legitimacy in the community, Constitu­tional Courts are always forced to speak the language of the law, not the one of politics, even in the cases when they aim to send political messages. As pointed out by Michel Foucault, language in modern society is power, and this feature persists even in the most ‘politicised’ legal terminology: simply by classifying a political problem and a political solution into legal language, the justices are (consciously or unconsciously) choosing to impose on the issue the domain and limits set by the legal discourse.^[64] Therefore, the work of the Constitutional Courts should be evaluated accordingly, i.e., by using legal criteria and, at the same time, by excluding from the evaluation process all features and limits set by other types of discourses - and, among them, the political one.

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