Judicial Politics and Policy-making in Western Europe

Mary L. Volcansek

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781135193690
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Focusing on the intersection of politics and law in six western European countries and in two supra-national bodies, the contributors here aim to debunk the myth that judges are merely "la bouche de la loi" and analyze similiarities in policy-making of the judiciaries from one nation to the next.

Judges, Courts and Policy-Making in Western Europe

MARY L. VOLCANSEK

DOI: 10.4324/9781315035796-1

The logic and simplicity of turning to an objective third party to resolve conflicts, when two disagreeing parties cannot, is so ‘compelling that courts have become a universal phenomenon’.¹ No one seriously argues with this function of courts, and, indeed, when conflict resolution is believed to be impartial and objective, judicial authority is accorded substantial legitimacy. The exercise of judicial power is not usually challenged even when courts become vehicles for the maintenance of order and the distribution of rewards. When judges, however, are seen as law makers, the consensus that upholds judicial legitimacy is far less solid. This volume is an examination of how a number of European courts, both national and supranational, engage in law-making (or, more euphemistically, how they make policy) and reactions to their activity.

The credibility of courts and court decisions traditionally rested on the myth that judges had no discretion in rendering decisions, that judicial mandates followed the simple formula of R (Rules) × F (Facts) = D (Decision).² The American realist school largely debunked that myth, and European scholars have likewise rejected the notion that judges are no more than ‘la bouche de la loi’ (the mouth of the law). That courts make policies through even the simple act of choosing among competing interpretations is now widely accepted. That they often do far more is also not in doubt.

Judicial policy-making has been defined in various ways, but few would disagree with the Grossman and Tanenhaus assertion that it is the factor that ‘punctuates the role of courts in the political system’, for judicial decisions are frequently crucial catalysts directing social change, in part because ‘men have long articulated the means and ends of their common existence through law’.³ Undoubtedly, most of what courts do is not political, and policy implications extend no further than the parties to a case, unless the remedy selected or the method of reaching it is novel and adopted by judges in other jurisdictions. Policy-making by courts, instead, occurs when the case involves choice and judgment, when judges are called upon to select from among competing rules, interpret new ones, or act in the absence of clearly articulated executive, legislative or constitutional norms. Judicial policy-making, therefore, does not necessarily imply that courts are usurping the powers of other government institutions and frankly could only be totally eliminated if those drafting laws wrote wholly unambiguous ones and left no possible contingency uncovered.⁴ Of necessity, judges also make policy when they ‘write on a clean slate’, in addressing a new legal question or interpreting a new rule.⁵ They are likewise policy-makers when asked to be problem solvers and, consciously or unconsciously, cause change in society. Even the decision not to decide or to support the status quo can constitute a policy choice, for it lends legitimacy to existing conditions.

The political role of courts is largely ignored in comparative research, and a variety of explanations has been offered for this omission. That courts are really political is typically denied, and the related suggestion that courts in many societies simply arbitrate and mediate is often offered. Another rationale, proposed in a recent comparative politics textbook, is that court functions are so ‘system-specific’ that the level of generalisation achievable in studies of legislatures and executives is lacking.⁶ This volume, albeit restricted in scope to western Europe, refutes that proposition. Considerable similarities in judicial functions and influences on politics are documented in the articles included. The specific routes that each nation’s judges follow may vary and are dictated by system-specific norms and procedures, but the outcomes are strikingly comparable. This is true when speaking of small nations (Belgium and the Netherlands) or large ones (Britain, Germany, France and Italy), civil or common law, northern or southern Europe.

Judicial policy-making does not follow a single format, and the consequences of judicial activity are hardly uniform. The contributions included here cover six western European countries, as well as the European Court of Human Rights and the Court of Justice of the European Community. They consider different legal and political cultures and represent national political systems both old and new. They demonstrate that judicial policy-making occurs in all, and only the form, method and style vary.

Gavin Drewry provocatively challenges the traditional fiction that British judges are outside the political sphere, because of the prominence of parliamentary sovereignty. He portrays British judges as ‘patrolling the boundaries’ through judicial review of administrative actions and the common law that resides wholly in judicial interpretation. Judicial ‘nudging’ of the law, though typically cautious and incremental, has none the less, Drewry notes, been important in the areas of administrative proceedings and defining the powers of local authorities. Judges, he concludes, play a small, but significant role in policymaking that could be enlarged were the UK to adopt a bill of rights or incorporate the European Convention on Human Rights into domestic law.

Alec Stone’s analysis of the policy-making role of the French Constitutional Council dissects the increasingly active participation of this ‘court-like’ body in French politics. Though the French claim to adhere to a rigid separation of powers that has the effect of limiting judicial authority, the Constitutional Council (not wholly legislative, but not quite judicial) has injected itself aggressively into the legislative process. Displaying more creativity than even a typical activist court, it has shaped, if not formulated, French policy by creating a ‘bill of rights’ and limiting the scope of nationalisations and press/audiovisual reforms. Its jurisprudence now sets the parameters of legislative debate.

In her discussion of the German Constitutional Court, Christine Landfried considers that Court’s policy-making role through both abstract and concrete judicial review, as well as the constitutional complaint procedure that allows individual citizens to assert their rights before the German constitutional judges. Though fewer than five per cent of all laws passed by the Bundestag have been invalidated by the Court, the constitutional judges have substantially influenced German policies in the social and financial, as well as legal, areas. The jurisprudence of the Constitutional Court is so critical in legislative debates that parliamentarians are sometimes viewed as engaging in ‘Karlsruhe-astrology’, in their attempts to anticipate what will or will not survive constitutional scrutiny.

Elisabetta de Franciscis and Rosella Zannini focus on the Italian Constitutional Court, though they also recognise that other Italian judges are often accused of injecting their own ideologies into decisions. Despite the political bases of appointments to the Constitutional Court, judges are generally perceived as deciding cases on law more than on politics. In de Franciscis and Zannini’s analysis, the Court’s policymaking is dramatically demonstrated in its decisions on church–state relations, centre–periphery power delineation and validation of referendum proposals. They argue that, despite the general high regard in which the Court is held, life tenure and popular election for members of the Court would enhance its independence.

As Peter van Koppen explains in his contribution on the Netherlands, Dutch courts have emerged as important participants in forming legal and political policy, even though they are explicitly denied the power to judge the constitutionality of laws. The nature of Dutch politics, with its emphasis on accommodation and compromise, has the effect of undermining the specificity demanded by a legal system predicated on the notions of code law. Rule-making, thereby, is left to the judiciary and can be observed in the norms governing, for example, labour strikes, abortion and euthanasia.

Belgian Supreme Court Judge Ivan Verougstraete considers how Belgian courts, operating in a complex milieu of regional and national power sharing, have influenced social policy in the kingdom. A very limited form of constitutional review is exercised by the new Cour d’Arbitrage, but other judges, through a purposive or teleological approach to interpreting statutes, have affected Beligan policies on morals, human rights, linguistic freedoms, refugees and economics. Creative judicial policy-making enjoys broad public support, perhaps because judges tend, when confronted with ambiguous situations, to follow the political mainstream.

The contributions on national courts in this volume clearly demonstrate that the sum can often equal more than the parts. They collectively suggest a number of important similarities about how courts enter or at least influence the political fray. Judicial review, or the power of a court to determine the constitutional validity of a legislative act, is usually the most obvious manifestation of raw judicial power. Judicial review of this sort, however, is only permitted in the German Federal Republic and the Republic of Italy,⁷ and only a limited form is permissible now in Belgium. Yet, even in France, where the Rousseauian orthodoxy of popular sovereignty is so pervasive that judicial review was made a criminal offence in 1791, the need to reconcile constitutional promises with legislative actions led to the creation of the Constitutional Council that exercises abstract, a priori review; the power of this body is likened by Alec Stone to a third chamber of the French parliament. In Italy and Germany, the power of judicial review has been wielded by the constitutional courts in sticky areas, where parliaments were unable or unwilling to act. The Italian Constitutional Court dismantled repressive Fascist-era laws and was in the forefront of redefining church–state relationships; the German and French constitutional bodies defined requirements for press pluralism and electoral reforms.

Judicial review, though, is only one means by which courts in western Europe make policies. ‘Judicial creativity’ or ‘purposive interpretation’ or merely filling gaps and reconciling inconsistencies occur in Great Britain, Belgium and the Netherlands and in the ordinary and administrative courts of Germany, France and Italy. That role in Britain is limited and residual because of the absence of a codified constitution and adherence to parliamentary sovereignty, but nevertheless is quite apparent in a peculiarly British form of judicial review which consists of a cluster of remedies available for acts or omissions by public authorities. In Belgium, the ordinary courts have an impact on policy through the law of torts, and the Council of State can check executive abuse of power. Since 1919 courts in the Netherlands, particularly the Hoge Raad (Supreme Court) has, on a case by case basis, given broad interpretations to codes and statutes and has, thereby, evolved into a ‘deputy legislator’. The political influence of these courts is most apparent, I believe, in that (except for the British) judges were instrumental in fashioning national abortion policies; although even the British judiciary was influential in affecting the government’s role in making birth control information available to minors.

Some of the most controversial social issues have been shuttled to the courts in their role as problem solvers: euthanasia (Netherlands), pornography and immigration (Belgium), centre–periphery boundaries (Italy and Belgium), educational reform (Britain); public financing of political parties (Germany) and nationalisations (France). These nations’ courts represent distinctive legal traditions and highly diverse political cultures. Consensus and accommodation are prized in Belgium and the Netherlands; pragmatism is a cherished British value; ideology colours political action in France; and distrust of government prevails in Italy. Despite their differences, however, the judges in each nation, using the avenues available, have profoundly influenced social policies and limited government actions.

All of the articles in this volume point to three other trends that are likely to influence judicial policy-making in western Europe in the future. Though the judges and courts in each instance maintain low profiles, there is a tendency toward greater politicisation in the judicial appointment process. Politicians are aware of the potential power of the judiciary and are anxious to staff the powerful courts with their partisans. Also, the triad of government power, described by Locke and Montesquieu and regarded as virtually sacrosanct in western political mythology, is dead or dying, as executive power progressively dwarfs the legislative. This development brings into question the strength of the long-standing bulwark, in theory at least, to judicial policy-making: ‘the political principle that governmental policymaking … ought to be subject to control by persons accountable to the electorate’.⁸ Neither prime ministers or chancellors nor their cabinets are directly responsible to the electorate in any of these nations. Courts, therefore, may find their policy-making role enlarged as the guarantors of the substantive ideals of democracy,⁹ when electoral accountability in all spheres of government seems to be waning.

The third element affecting the policy-making roles of these national courts is the relatively new, but growing importance of, supranational law and courts. The European Community and its court in Luxembourg and the European Convention on Human Rights, the court which sits in Strasbourg, insert an entirely new, but hardly extraneous, variable into the judicial role equation. The treaty obligations of each country that accrue through membership in the European Community present the possibility, perhaps the responsibility, of national judges’ invalidating their country’s laws that are inconsistent with Community demands, even in countries where judicial review is prohibited. The European Court of Human Rights similarly creates individual rights that national judges in signatory countries are bound to protect. The precise applications of these treaties are, moreover, governed by executive bodies and courts having no democratic component. These new supranational courts exercise considerable policy-making clout in their own right, but also may exert significant influence on the practices of national courts.

In separate pieces, André Bzdera and I each consider the European Court of Justice (CJEC). I treat the overt judicial activism of the European Court by ‘constitutionalising’ the treaties of the Community, promoting economic integration and creating a list of human rights binding on Community institutions. The Court has not, I argue, been harshly criticised for its intrusion into the traditional legislative realm, largely because there is no Community institution that can legitimately claim to be the repository of popular sovereignty or to hold an electoral mandate. Though the Court has enjoyed almost universal support for its activities in integration, its role will likely be altered as the 12 nations increase their ties and as additional powers are granted to the Community parliament. Bzdera focuses on the question implied in my conclusions – reforming the CJEC. Looking at the Court as a federal court, arbitrating between centre and periphery, he analyses prominent reform proposals and concludes that they are insufficient. Bzdera, instead, offers a number of possible institutional changes that could transform the Court so as to better fulfil the neutral arbiter role required by increasing federalisation in the Community.

The Community Court’s companion judiciary, the European Court of Human Rights, has, so far at least, been less active (hearing only 151 cases from 1959–89), but its potential for influencing national policies is likely to increase. John Stack looks at the European Court of Human Rights and, for points of reference, also compares it to similar efforts to ...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Notes on Contributors
• 1 Judges, Courts and Policy-Making in Western Europe
• 2 Judicial Politics in Britain: Patrolling the Boundaries
• 3 Where Judicial Politics Are Legislative Politics: The French Constitutional Council
• 4 Judicial Policy-Making in Germany: The Federal Constitutional Court
• 5 Judicial Policy-Making in Italy: The Constitutional Court
• 6 Judicial Policy-Making in the Netherlands: The Case-by-Case Method
• 7 Judicial Politics in Belgium
• 8 The European Court of Justice: Supranational Policy-Making
• 9 The Court of Justice of the European Community and the Politics of Institutional Reform
• 10 Judicial Policy-Making and the Evolving Protection of Human Rights: The European Court of Human Rights in Comparative Perspective
• Index