Judicializing Politics

&
Politicizing Judiciary
 Since WW II
RULE OF LAW – in practice
• Global rise of constitutionalism
• Global rise of constitutional courts

a) Limitation of parliamentary authority

b) Constraints on public policy –the executive
c) Regulation of political life generally –elections,
political parties, interest groups, lobbies, etc.
 our question
-Is the marriage between democracy and the
rule of law harming or undermining democracy?
 judicialization of politics
--Judicial legislation in some public policy areas
--Politicians constrain their policy decisions by
existing legal and constitutional norms
--Formation of international judicial bodies –
ECHR, ICC, etc
 dispersion of rule making powers
• Administrative rule-making –governmental agencies
made up of experts making rules, while being
dependent on the legislature for funding and
authority (such as central banks, trafic regulators,
environmental agencies, public health agencies, etc.)
• Regulation of social life –google, facebook, twitter,
universities, insurance companies, etc. make many
rules constraining their customers and workers

---all keeping in mind what courts may decide

 result
• Limitation of the power of ‘democratically’
elected politicians
• Expansion of the scope and power of judicial
and non-political legislation and policy making
 pros and cons
Ordinary legislation: Judicial legislation:
--popular accountability --principled reasoning
--open to people’s --presumption of shared
participation in politics norms of politics
--partisan or divisive --anti-majoritarian
--majoritarian --removed from
democratic accountability
 changing nature of democratic politics?
Process-oriented law-making
--parliamentary and
presidential systems and
the complex ways in which
they operate
--negotiations and consessions
among political factions
*people have pressing needs
and do not want to wait for
the process to run its course
Principle-oriented law-making
--women’s rights
--environmentalism
--health care, income and job
safety – minimum wage
*process and accountability is
sometimes more important to
get what you want
 Does judicialization of politics undermine
democracy?
• Not necessarily
--emphasis on rules and principles rather than
ordinary partisanship
--principled deliberation and expert-view rather
than mere voting

 judicialization may complement rather than

undermine democracy
 dangers of judicialization
--election of judges is a matter political rivaly:
political appointments of judges
--politically-minded or partisan judges: acting on
a mandate from the people

But there may be solutions:

 there are more and less politicized ways of
appointing judges, such as choosing judges with
super majorities
 judicial independence –e.g., life tenure
 Democratic consolidation rests on high
politics rather partisanship
a) different kinds of legislation are important for the
complex and balanced functioning of democracies
b) courts can play an vital role in regulating ordinary
legislative activities
c) normative standards of politics must be
observed:
d) emphasis on fundamental areas of consensus