The theme of political role of judges is an old one in the literature of democratic countries. Indeed, Alexis de Tocqueville already tackled the "political importance" of the courts in his famous Democracy in America (1835). The reason is that there is inevitably, in modern democracies, "an area where law and policy will intersect" (Doyle, 1998:104). Most of judges only interpret the law in order to apply it to concrete cases brought to us, and if in this process the law is subject to changes, those are minor. It goes differently for constitutional judges which are in charge of checking the conformity of the law to the Constitution and thus of its interpretation.
Their decisions have major political implications, and it is not rare that they break down an act of legislation. As a consequence, constitutional judges are often qualified as undue policy-makers, to the extent that they are not elected representatives of the people. To what extent can the interpretation of the Constitution be considered as making policy, and what are the implications if it is the case?
The thesis defended here is that judges can be described as policy-makers in the sense that they have to take decisions on political issues and with political consequences, but that they are not truly political actors because their methods to take decisions and behaviors are proper to the Judiciary. Moreover, this increased political power is not undemocratic because it is needed. In order to demonstrate these points, I will first look at the inherent hybrid nature of constitutional courts, both judicial and political, with a growing importance of the political role over the judicial one. Then I will move on to the implications of this evolution, wondering if it should be considered as undemocratic.
[...] Finally, constitutional courts allow the citizens to have a certain control over their representatives outside elections time through constitutional judges, and even more when they have the possibility to seize themselves constitutional jurisdictions. What is important to notice here is that judges have no interest in abusing their power, because as soon as they do and become highly politicized, they are subject to public criticism just like politicians. As Doyle (1998:110) said, judges “must recognize that if the public were to perceive them as law makers [ ] their judicial independence would be at risk”. [...]
[...] By doing so, it made himself the protector of citizens' rights against the abuses of political authorities. However, there are limits to the politicization of constitutional courts. Indeed, “although there may be political consequences of judicial decisions, the Judiciary is expected to operate impartially and independently and to not act politically” (Warren, 2008:4) and “there is an important difference between political actions and political consequences” (Warren, 2008:10). * * However, the growing political power of constitutional judges raises the question of their democratic legitimacy. Indeed, how powerful can be unelected individuals? [...]
[...] King's Law Journal, Vol.21, Issue PP.311- 331. Duhamel O Droit constitutionnel et institutions politiques. Paris : Seuil, 2nd edition. Halberstam M “Judicial review: a comparative perspective: Israel, Canada, and the United States”. Cardozo Law Review, Vol.31, Issue pp.2393-2456. Warren M “Unelected doesn't equate with undemocratic: parliamentary sovereignty and the role of the judiciary”. Deakin Law Review, Vol.13, Issue pp.1-16. Popovic D “Prevailing of Judicial Activism over self-restraint in the jurisprudence of the European Court of Human Rights”. Creighton Law Review, Vol Issue pp.361-396. [...]
[...] First, the action of constitutional judges guarantees the respect of the rule of law: “despite the fact that strong tensions may exist at times between the Judiciary and the political branches, it is this tension that maintains democracy and governance under the rule of and “ensures that citizens are not subjected to the arbitrary exercise of state power” (Warren, 2008:5-6). The possibility of a judicial sanction both at the national and the European level from a Court which has the reputation to be particularly concerned by the protection the rights of citizens is likely to encourage governments to be more careful about those rights while legislating. Moreover, constitutional judges are useful in adjusting the law to societal evolutions. Indeed, our society is changing faster and faster, becoming ever more complex. [...]
[...] However, one can witness a growing prevalence of the political role of constitutional courts over the judicial one. According to Doyle (1998:121) law making function of the courts has been more openly acknowledged recently”. Most of constitutional courts were originally designed to be a guarantee of the balance of power between different institutions and levels of government; this is why they first emerged in federal states. However, constitutional courts were led to take decisions about major societal issues such as racial segregation (in 1954 in the United States), abortion (in 1975 in Italy, in 1975 and 1993 in Germany), or the relationship between religious institutions and the state. [...]
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