Courts, Politics and Constitutional Law

Judicialization of Politics and Politicization of the Judiciary

Martin Belov

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781000707977
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto amministrativo

This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers.

This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes.

Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.

Part I

Courts and democracy

1 Democracy and courts beyond the ideological banality

Daniel Valchev

1.1 Introduction

In this chapter, I shall not induce arguments in order to prove that today’s liberal democracy is the only right form of governance in the 21st century. It seems to me that after the Habermas–Rawls debate of the 1990s it would be a fruitless effort to point out new arguments in this direction, whether they be of a procedural or a substantial nature. ¹ I shall not strive to prove the opposite either – that this is an exhausted political and value paradigm that ought to be forsaken, or at least significantly altered. An attempt at this would offer a certain intellectual temptation but would be futile without outlining a desirable alternate political model, such as contemporary societies have not, as of yet, discovered.

1 I am inclined to agree that the two theories are close on the axis of procedurality/substantiality, as far as John Rawls’ Theory of Justice justly claims to have the characteristics of a procedural theory, while Jürgen Habermas’ Discourse Ethics is not at all deprived of presumptive substantial footing.

Within this chapter, I shall try to do three things:

1. (a) present my views on the main internal contradiction of the contemporary democratic paradigms, as well as on how the changing social environment influences this contradiction;
2. (b) outline the role of the Court in maintaining the contemporary democratic systems of the Western type in a relative balance and what are (in my opinion) the expectations in that respect;
3. (c) appeal for extreme caution when it comes to disempowerment and especially ‘disenchantment’ ² of the Court.

1.2 Court and separation of powers – Some banal remarks

The ideological banality requires that we present the Court not only as an important democratic institution, but as one of the most important democratic institutions. The grounds for this are just as banal as the thesis itself – without the Court, there is no way to create a system of mutually controlling authorities (or groups thereof) which guarantees that the democratic order will not be replaced by a dictatorship and, what is more important, without which individual freedom would be in danger. The Court is seldom regarded simply as one of the bodies that participate in the separation of powers. It is believed, by definition, that the court’s rulings possess a very high degree of legitimacy as ones grounded entirely on law and justice and are thus denuded of any influence by individual or collective interests related to the political conjuncture, which is typical for the decisions of the other two branches of power.

2 I shall use the word disenchantment in the way Max Weber uses the German word Entzauberung – meaning ‘the breaking of a magic spell’, i.e. a process of lifting the delusive enchantment and the illusions as to the origins, the pattern of development, or the meaning of a certain social phenomenon.

In fact neither John Locke, nor Charles Louis de Montesquieu whom we often point out as the fathers of the theory of separation of powers, grant the Court such a place in the general balance of powers as we do today, often referring to them. As we know, Locke only bestows upon the judiciary peripheral attention, and doesn’t consider it necessary to explicitly place it in the balance of powers, ³ whereas Montesquieu, while pointing it out as one of the three powers, adds that it is not a power in the strict sense of the word. ⁴ Regardless of the differences, they both accentuate the authorities that are involved in the creation of general rules of conduct (the Parliament or the King in Parliament).

3 In point of fact, we ought to note that Locke appreciates the significance of the function of justice. In the chapter named ‘The purposes of political society and government’, he points out that the three things which are lacking in the state of nature are ‘an established, settled, known law, received and accepted by common consent’, ‘a known and impartial judge’, and ‘a power to back up and support a correct sentence, and to enforce it properly’. J. Locke, Two Treatises of Government, Create Space Independent Publishing Platform, 2013, II Treatise, Ch. IX.

4 ‘Of the three powers above mentioned, the judiciary is in some measure next to nothing’. (Original French version: ‘Des trois puissances dont nous avons parlé, celle de juger est en quelque façon nulle’.) C. Montesquieu, De l’Esprit des Lois, Paris, Librairie de Lecointe, 1832L. XI, Ch. VI.

The French Revolution continues this tradition by sanctioning Rousseau’s view that the law is an expression of the general will. However, two of the other central theses in Rousseau’s theory are forsaken – first, that the general will is not necessarily the will of the majority (according to him, the criterion is not quantitative at all – even the unanimous will of all may not be the general will), and second, that it can only be formed directly by the sovereign people, which means that it certainly cannot be reached through political representation. ⁵ The practice of the French Revolution (especially during the Jacobin period) results in both forsaken theses losing their popularity but does not affect the legitimizing force of the thesis of the law as an expression of the general will.

5 Rousseau considers the general will to be the will of a politically organized community, which he refers to with the interchangeable terms nation, state, sovereign, or the body politic. The criterion whether there is a general will is not quantitative at all, but whether the will is directed towards the common interest (intérêt commun). Who decides whether something is in the common interest, and how, is a matter of complicated sophistic reasoning in Rousseau’s theory.

In the 19th century in the Western world a common understanding of democracy was gradually built. Despite the numerous interpretations democracy is considered a ‘system of political representation’ whereby the common will is in the Parliament’s possession and the Court is called upon to apply the laws correctly.

In continental Europe the question of the Court’s significance in the system of democratic separation of powers is being rediscovered within the debate for the constitutional courts. ⁶ The authority of a professional body, which is, by default, stripped of any claim to political representation, to repeal laws, poses a challenge to the traditional democratic thinking. ⁷ The result is an obvious paradox – a complicatedly formed collegium of experts rule on behalf of the constitutional legislator, thus controlling the ordinary legislator that creates laws on behalf of the people by whom the latter was elected.

6 This debate really is rather continental, since in the English-speaking world, the matter was put to discussion much earlier – for example, by A. Hamilton, J. Madison & J. Jay, The Federalist Papers, New York, Bantam Classics, 1982, p. 78.

7 This is one of the dimensions of the debate between Hans Kelsen and Carl Schmitt regarding who the guardian of the Constitution is. In the last several years, interest in the two scholars, and especially for this debate, is renewed. See for example, L. Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, Cambridge, Cambridge University Press, 2015.

The crisis of the parliamentary models between the two world wars gave new topics for consideration. It turned out that the rapid expansion of voting rights in combination with economic insecurity and social disappointments might give birth to anxious majorities with very low loyalty to the established democratic traditions. Consequently, different types of techniques for limiting the omnipotence of the majority were developed and refined in the post-war years. In my opinion the existing mechanisms for restraint of the majority that deserve to be considered can be reduced to the following three groups – procedures, bodies of various professional élites, and normative ideology.

Why am I even addressing this topic today? In my opinion there are at least three reasons.

First, the rapid development of information and communication technologies in the last decades is beginning to reflect on fundamental constellations in Western societies and cause a crisis of certain fine mechanisms for ensuring the reproduction, or at least a smooth evolution, of the social structures – education, media, cultural environment, a slower accumulation of material wealth etc. Indeed, principles in public law do not traditionally rise via network but are rather hierarchically imposed. ⁸ But the networks can have a strong destructive charge. It is known that in chimpanzees, the young males, coordinated in a network, take the authority of the aged Alpha male away. It is a fact that hierarchy is then re-established – a new hierarchy replaces the temporary network that brought down the old hierarchy. If we follow that logic we may assume that the information and communication networks are unlikely to create new principles in public law but may seriously question the existing ones.

8 I have developed arguments in favour of this thesis in my article ‘Legal Principles in Public Law’, published in M. Belov (Ed.), Rule of Law at the Beginning of the Twenty-First Century, Den Haag, Eleven International Publishing, 2018, pp. 5–8.

Second, the concept that the world is moving toward a unipolar value and political model of a Western type that flourished 30 years ago has withered, and today exists only in the form of a carefully preserved herbarium. This inevitably leads to the expectation of a new opposition of values and political models, such as a whole new generation do not remember. Furthermore, it is a ...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• List of contributors
• Introduction
• Part I Courts and democracy
• Part II Courts and their relationship with legislative and executive power
• Part III Courts, constitution-making, and the separation between constituent and constituted powers
• Part IV The role of courts in the context of democratic backsliding, illiberal democracies and populist constitutionalism
• Index