Increasingly, the courts are becoming involved in addressing and resolving significant political and institutional questions. The ever-growing role and the authority of courts are also being analysed under the ‘judicialisation of politics’ arguments. Judicialisation entails ‘the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies’.209 It is argued that by and large the ‘decision-making rights’ seem to be shifting, either formally or informally, from elected branches of the government to the judiciary.210 In other words, constitutions and other statutes are increasingly empowering judiciaries with a range of jurisdictions. The judiciary itself often seems to have developed an expanded interpretation
209 Hirschl, ‘The New Constitutionalism and the Judicialisation of Pure Politics Worldwide’ 721.
210 Torbjörn Vallinder, ‘When the Courts Go Marching’ in C Neal Tate and Torbjörn Vallinder (eds), The Global Expansion of Judicial Power: The Judicialisation of Politics (New York University Press 1995) 13.
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of formal rules of jurisdiction and standing or admissibility. As a result of the judicialisation of the constitution, it is inevitable that certain ‘elements of legal discourse penetrate and are absorbed by political discourse’.211 Therefore, it has been widely observed that courts have become ‘powerful institutional actors or policymakers,’212 in terms of directing public policy-making,213 and being involved in legislative processes.214 For example, it can be seen that courts increasingly tend to ‘limit and regulate the exercise of parliamentary authority by imposing substantive limits on the power of legislative institutions. Thus, the judiciary could become an avenue for making substantive policy.’215 Similar developments can also be seen in relation to procedural ‘rules governing the exercise of legislative power’.216
An initial reading of the literature attributes the expansion of judicial power to the values and practices spread with the global trend of democratization, constitutionalism, human rights, the relative decline in parliamentary supremacy and the ineffectiveness of majoritarian or policy- making institutions, and government’s increasing interference in all aspects of social life.217 However, a deeper review suggests that scholars have developed different theories to account for this increasing expansion of judicial power. There are two predominant arguments. The first one focuses on institutional and legal factors and their impact on judicial power. Thus, it is argued that an entrenched constitution that guarantees a bill of rights and a reasonably independent, accessible and constitutionally empowered judiciary can increase
211 Alec Stone, ‘Judging Socialist Reform: The Politics of Coordinate Construction in France and Germany’ (1994) 26 (4) Comparative Political Studies 446.
212 Martin Shapiro, Alec Stone, ‘The New Constitutional Politics of Europe’ (1994) 26 (4) Comparative Political Studies 401<http://cps.sagepub.com/content/26/4/397.full.pdf+html> accessed 10 December 2015.
213 C Neal Tate, ‘Why the Expansion of Judicial Power?’ in Tate, Vallinder (eds), The Global Expansion of Judicial Power 28.
214 Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford University Press 1992) 119-138.
215John Ferejohn, ‘Judicializing Politics, Politicizing Law’ (2002) 65(3) Law and Contemporary Problems 41.
216 Alec Stone Sweet, Governing with Judges Constitutional Politics in Europe (Oxford University Press 2000) 195.
217 See Shapiro, Stone, ‘The New Constitutional Politics of Europe’ 397-420; C Neal Tate, ‘Why the Expansion of Judicial Power?’; Ferejohn, ‘Judicializing Politics, Politicizing Law’ 41–68.
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the potential for the expansion of judicial powers beyond procedural matters into the realm of ‘substantive political issues central to the polity’.218
Indeed, institutional and legal factors are the most cited grounds, and indeed the most cited defence, for court activism from the judges’ perspective. The UK courts seem to frequently emphasise that the Parliament has empowered them with weak forms of legislative review under the Human Rights Act 1998. It was explicitly expressed in the Nicklinson case that ‘Parliament has cast on the courts the function of deciding whether a statute infringes the Convention.’219 In other words, Lord Kerr argued that by exercising this jurisdiction,
the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right […] it is open to Parliament to decide to do nothing.220
In other words, the legislature expanded judicial powers by introducing the Human Rights Act of 1998. Although these institutional and legal explanations and factors are of significant relevance to judicial power in general and judicialisation in particular, one should be aware of overestimating and generalising similar arguments. The literature refers to a variety of different cases in which courts with similar jurisdictions and institutional structures have performed differently.
One of the examples academics cite for ineffective judicial review is the Swedish Supreme Court.221 It is argued that the legal and constitutional factors (including a hierarchy of legal norms, a bill of rights, and the preview of bills of legislation by the Law Council, staffed with judges, before they come into effect) have not led to greater judicialisation in Sweden.222 It should be noticed
218 Ran Hirschl, ‘The Struggle for Hegemony: Understanding Judicial Empowerment through Constitutionalism in Culturally Divided Politics’ (2000) 36(1) Stanford Journal of International Law 74 (footnotes 4).
219 [2014] UKSC 38 Para [100]. 220 ibid Para [343].
221 Barry Holmstrom, ‘The Judicialisation of Politics in Sweden’ (1994) 15(2) International Political Science Review 153-154; Thomas Bull, ‘Judges without a Court: Judicial Preview in Sweden’ in Tom Campbell, K D Ewing, and Adam Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press 2001) 393-402.
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that the Swedish ‘preview-system’ contributes to that. The system consists of ‘legislative committees in preparing legislation, open access to public documents and the right to publish those, the experts’ opinions of the Law Council and scrutiny by the Constitutional Committee of the Parliament’ which results in carefully drafting legislative bills minimising the potential for challenging their constitutionality.223
Similarly, scholars have frequently made reference to the Japanese Supreme Court as an example of a self-restrained court. It is reported that in the course of the fifty years since the Court began functioning, it has declared only eight laws unconstitutional.224 Many would argue that even these were in cases that ‘the unconstitutionality of public policy becomes so obvious, or administrative discretion becomes so unreasonable and arbitrary’,225 that judges had no option but to overule them.
The second set of arguments concern judges, their preference and willingness to engage in controversial questions of a constitutional and political nature. Thus, it is argued that judges decide cases according to their ideological, political or legal policy preferences.226 Therefore, it is claimed that ‘changing judicial and legal culture, not changing documents, is what leads judges to assume a more activist posture toward the other branches of government.’227 On the importance of the judges’ willingness to expand judicial powers, C Neal Tate, while underlining the formal and institutional factors, argues that for judicialisation to occur and develop, judges’ personal attitudes and policy preferences are critical factors. In his opinion, such developments depend on judges’ decisions, and he maintains that judges ‘should (1) participate in policy- making that could be left to the wise or foolish discretion of other institutions,
223 Bull, ‘Judges without a Court: Judicial Preview in Sweden’ 394.
224 David S Law, ‘Why Has Judicial Review Failed in Japan?’ (2011) 88 Washington University Law Review 1426.
225 Hiroshi Itoh, ‘Judicial Review and Judicial Activism in Japan’ (1990) 53(1) Law and Contemporary Problems 177.
226 Druscilla L Scribner ‘The judicialisation of (Separation of Powers) Politics: Lessons from Chile: La judicialización de la (separación de poderes) política: lecciones de Chile (2010) 2(3) Journal of Politics in Latin America 84.
227 Samuel A Bottomley, ‘Implied Constitutional Rights and the Growth of Judicial Activism’ (PhD, the University of Calgary 1997) 5,
<http://www.collectionscanada.gc.ca/obj/s4/f2/dsk2/ftp04/mq24575.pdf> accessed 1 December 2015.
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and at least on occasion, (2) substitute policy solutions they derive for those derived from other institutions.’228
Furthermore, judges’ perception of their professional role or, as James Gibson puts it, what they ‘think they ought to do’, 229 is of considerable relevance. In general, some judges might see their role or the extent of their influence as being restricted to applying laws without attempting to intrude into the political domain.230 For example, it can be seen that although judges in Scotland have the power to strike down unconstitutional Acts issued by the Scottish Parliament, they have explicitly refused to decide on issues of ‘considerable public controversy.’231 In the Adam v The Scottish Ministers case, which was challenging the Protection of Wild Mammals (Scotland) Act 2002, prohibiting mounted foxhunting, on the grounds that it was outside legislative competence of Scotish parliamnet and also it was incompatible with the Convention rights, Lord Nimmo Smith argued that the matter in question was ‘recognised as being more appropriate for decision by a democratically elected representative legislature than by a court.’232
Other judges may see their role as being unrestricted by boundaries between the political and the legal realm. In this situation, judges may view their role as being that of the reformers striving to bring about political liberalization through legal channels.233 Some may even blame the ‘power hungry’ courts for being too assertive about deciding on moral and political issues. 234 Indeed, it is observed that,
judges have been increasingly willing to regulate the conduct of political activity itself- whether practiced in or around legislatures, agencies, or the electorate- by constructing and enforcing standards of acceptable behavior for interest groups, political parties, and both elected and appointed officials.235
228 Tate, ‘Why the Expansion of Judicial Power’ 33, [Original emphasis].
229James L Gibson, ‘From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behavior’ (1983) 5(1) Political Behavior 9.
230 Mahmoud Hamad, ‘When the Gavel Speak: Judicial Politics in Modern Egypt’ (Ph.D., The
University of Utah 2008) 292.
231 Ewing, Bonfire of The Liberties 279. 232 [2004] SC 665.
233 Hamad, ‘When the Gavel Speak: Judicial Politics in Modern Egypt’ 292. 234 Hirschl, ‘The Judicialization of Politics’ 134.
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Therefore, not any court that has constitutional review powers and a mandate to enforce an entrenched bill of rights will inevitably exercise such powers or enlarge its role and influence on public policy. There is an implicit assertion that judges’ willingness to expand judicial powers and to affect or direct public policy-making is of significant relevance for explaining judicialisation. In any case, one could argue that the conceptual difficulties regarding the rule of law and democracy could also reflect the essence of the arguments mentioned above. Understanding and applying the substantive conceptions of the rule of law and democracy would potentially provide greater expansion in judicial powers as the grounds for constitutional review would expand, as compared to under formal and procedural understandings of these two concepts.
This thesis acknowledges the judge’s role without further engaging in the relevant debates. Instead, it argues that judicialisation is said to emerge and develop as a result of the interaction of multiple factors. These factors include a relatively independent, accessible and constitutionally empowered constitutional judiciary. In addition, the fragmentation of political powers within and between political branches of the government may increase the amount of unresolved constitutional controversies and questions, and minimise counter-reactions by the government against the judiciary. A growing demand from individuals, government and interest groups to involve the judiciary in addressing and resolving these controversies could potentially lead to a greater judicialisation of the constitution. It seems important to discuss these factors in some detail drawing on supply and demand side explanations.236