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Comparative Government: Judiciaries Literature Analyses & Tutorial Discussion
1. Judicialisation of politics - extent? Causes?
2. Impact of judiciary on courts output; how sustain political position and legitimacy
3. Relationship between judiciary and elected actors BACKGROUND
- Stone Sweet: old to new constitutionalism. Before power = popular legitimacy. After 1945 move to new constitutionalism. o Austria (1945) o Italy (1948) o West Germany (1949) o France (only 5th republic and mainly from 70s - initially abstract only)
- Similar adoption post collapse of Communist rule 1989: o CR, Hungary, Poland, Romania, Russia, Slovakia, Baltic states
? 1. A response to public demand
? 2. Authority from written constitute ion; lawful insofar as they conform
? 3. Constitution assigns ultimate power to people by way of elections
? 4.Provide rights and a system to defend those rights. Courts have a right and a duty. o Recent adoption in Middle East - eg Jordan 2012 formal constitutional court
- But not complete - UK, Netherlands and Scandinavia DON'T HAVE CHECKS AND BALANCES (EUROPE)
- Primarily constitutional, but also participatory and informational o Popular referendums (except Germany), eg Italy, France, Ireland, Scandinavia o Media and group scrutiny, rights to information etc.
- Separation of powers - generally rejected (partial exception France/CEE)
- Constitutionally entrenched devolution: widespread in larger states but not in smaller states.
- Judicial review: Testing laws and treaties against constitution considered role of legislature. o Generally, become most important of all checks. Has become 'third branch of the legislature'; Europe had a 'judge-led revolution'. ISSUES
1. Precise form of power: Abstract/concrete.
2. Composition of court (number, tenure, form of selection). Important for likely political independence of court.
3. Referral power
4. Judicialisation CONTRAST WITH AMERICA
- Power of judges: European court judges can't declare a law unconstitutional.
- Referral power: generally other governmental entities (government, legislature or minority within it, or subnational unit of government. Can also be citizens, eg. Germany.
- Review: emphasis on abstract rather than concrete review as practiced in the US.
- US: not in constitution. 1803 Marbury vs. Madison, but not used again until 1957 Dred Scott
Rights: Kelsen initially thought no. Later included. o More extensive than America o 'negative' but also 'positive' - eg education, employment
- Composition: o Generally larger than US (Germany 16; Italy 15; Spain 12)
- Appointment: not for life (issues of potential conflicts of interest - eg. Italy)
- But variation within - eg Germany 2 mutually exclusive 8 component Senates. SIMILARITIES WITH AMERICA
- Not elected: Nominated by combined decision of executive and legislature
- Generally lawyers (France's CC an exception)
- Generally seen as being politically impartial - though variable partisan bias often claimed to exist below surface of judgments, as in US, and indeed some European countries seem to have great controversy surrounding individual decisions and the legitimacy of the Court (eg Italy). Appointments supposedly impartial. Italy: charge that CC is leftist. Public belief eroded and undermined once argument arises. JUDICIALISATION VALLINDER (1995) definition o o
1. The process by which courts increasingly dominate the making of public policies that had previously been made by governmental agencies
2. The process by which nonjudicial negotiating and decisionmaking forums come to be dominated by quasi-judicial discourse, rules and procedures (Stone Sweet: politicisation)
? Totalitarianism and demand for limited government and removal of authoritarian influenceso
Proliferation of democracy
Institutional determinantsProliferation of multi-tiered governance or levels of governmentRights catalogueCapacity of judges to fulfil demands. Needs a judicial system that supports judicial activism, as well as a judiciary with strong guarantees of independence and an activist conception of the judicial role - ie independence, importance of tenure, composition and selection.Selection process: o Nomination (eg. France: 9 judges nonrenewable 9 year terms; 1/3 every 3 years); CR - president nominates o Election (eg. Germany - qualified/supermajority within legislature
?Civil/common law? Though LANE (2007) not much difference.FEREJOHN (2007): judicial activism inversely related to coherence in other political branches. Fragmentation gives court strength and independence - eg. Philippine's preMartial law court strong vs. UK weak. Also Hungary.
? Criticism: does increased independence necessarily increase power? Lack of clarity of causal mechanisms and other considerations of strength. Postcomm countries counter egs.
? Not true when require certain number to send to court - eg.France any group of 61 legislators can invite court to review legislation (though if fragmented opposition numbers higher) FRIEDMAN (1976): other ways of limiting majority rule must be ineffective.
? Lord Wolf (high court judge in UK) thinks reason why we have more judicial review of legislation in UK is because quality of legislative scrutiny of government has fallen. Michael Howard disagreed.o
needed. German CC: two senates, 8 judges, 12 year term. Bundestag/Bundesrat elect 4 judges each, 2/3 maj). Poland & Hungary: simple majority required. o Combination eg. Spain Type of review: abstract/concrete - see below. Abstract review petitions enable constitutional courts to construct constitutional law, extend techniques of control over lawmaking activities, and make policy. As the constitutional law expands, so do the grounds for judicialised debate. SS - selffulfilling. Legislate -> Judges -> constitution -> legislate.V.difficult to make judgments about quality of legislation. How can we judge whether legislation actually works. Varies partly because of weight of legislation bearing on system. High levels of output (Southern Europe). Eg Italian legislature produces 4x more than UK.Unproved and essentially unverifiable that constitutional threat improves quality of legislative performance.Surely not a necessary nor sufficient condition.
Endogenous determinantsJudges behaviour o
SMITHEY AND ISHIYAMA (2002): Causes based more on political behaviour of courts than institutional design.
Criticism: small sample size (8 countries) postcommunist
EPSTEIN and KNIGHT (1998): strategic model - applicable to Europe? Less evidence (see below).
But, dependence on acceptance. Might be constrained by public opinion.
Intentional allocation by politicians?oWHITTINGTON (2005): 'overcoming obstructions' account of why judicial review might be supported by existing power holders. Currently elected officials favour active judiciary to overcome obstructions. Illustrates with case studies from American constitutional history concerning federalism etc.
Exogenous determinantsGrowth of litigious, pluralist pressure politics?
Stronger when judicial institutions have more support.
Globalisation:Do the rights override the national constitution?
ECHR and EU's ECJ. Puzzle for German Constitutional Court. Accretion of power by ECJ - eg. Spain Constitutional Tribunal interprets EU treaties as if represent de facto constitution (GARRETT et al 1998). 60s and 70s development of powerful set of legal doctrines; involvement in many controversial cases - eg.tax.
Explaining variation in Judicialisation - maybe just as a function of the above determinants?
Stone Sweet (2000).
1. Possess abstract review: generates vigorous judicial activism. Court as 3 rd legislator. Eg. France/Germany.
2. Produce radical reforms (more centralized power over policymaking process)
3. Have a caseload and resolve disputes
4. More extensive in common law countries?
Hirschl (2008) Distinct phenomena:
- Judicial activism
- Rights jurisprudence
- Debates over judicial appointments
- Politicisation of the judiciary Involvement in mega-politics:
- Fiscal policy - eg Germany, Hungary
- Regime change eg. South Africa
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