Comparative Judicial Systems (2017-2018) Carlo Guarnieri In progress, please do not quote 1. Introduction: the global expansion of judicial power Judicialization In recent decades, a large number of contemporary democratic and, to some extent, also non-democratic - political systems have been characterized by a significant expansion of the part played by courts - i.e. of judicial power - a phenomenon often defined as
"the judicialization of politics". Judicialization Judicialization presents two - not necessarily related - phenomena: the expansion of the province of the courts or the judges at the expense of the politicians and/or the administrators, that is, the transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts And/or the spread of judicial decision-making methods outside the judicial province proper (Tate and Vallinder 1992, p.13), i.e. the increasing propensity of non-judicial structures and institutions at assuming decisional criteria taken from the judicial world: e.g. Parliaments debating the constitutionality of a bill, rather than its merits, or administrators more concerned about procedure rather than successfully implementing public policies (juridification).
Judicialization: general explanations The expansion of judicial power - i.e. the judicialization of politics - has involved most democratic countries, in both the civil and the common law worlds, although it has been stronger in some countries than in others. The reasons behind these developments are several. First, the period has been characterized by several democratization waves: after the second World War, during the 1970s in Southern Europe, in the 1990s especially in East Europe and Latin America. The last 25 years have been especially characterized by a worldwide trend toward democracy ( http://www.systemicpeace.org/polity/polity4.htm).
The new constitutionalism The new democracies, reacting to previous authoritarian and totalitarian regimes, have been heavily influenced by a new sort of constitutionalism, characterized by the institution of forms of judicial review of legislation as well as the strengthening of guarantees of judicial and often also prosecutorial independence (Sartori 1962; Stone Sweet 2000). In this process, the supranational dimension of constitutionalism has also to be taken into account: for instance, in Europe, the increased activism of national judiciaries has often found support in the Court of Justice of the European Union (http://curia.europa.eu/jcms/jcms/j_6/) and the European Court of Human Rights (www.echr.coe.int). The legal culture
Another related element supporting judicialization has been changes in the legal culture. A new emphasis on citizens rights and entitlements multiplying civil, political and, above all, social rights - and the emergence of an instrumental approach to law understood as a tool for advancing individual or collective goals have become common traits of contemporary societies. These traits deeply affect citizens' attitudes towards law and the legal system, with the consequence that the ideas and values that shape the relationships between law and society in various countries seem less different than in the past. The legal culture Today, there is virtually no area of social life immune
from public regulation, and thus no area can be excluded from judicial intervention. In fact, the demand for individual and collective rights, fueled by the development of both constitutionalism and welfare policies (see below), has meant that individuals and groups increasingly seek out the judicial system with the aim of obtaining an authoritative decision in their favor (Friedman 1994). In addition, unlike administrators and legislators, judges cannot refuse to provide a decision, once a case has come before the courts. The welfare state An additional factor of judicialization can be found in the development of social rights and the corresponding growth, in the second half of the XX century, of welfare
policies (Marshall 1950). The consequent proliferation of legislation has increased the significance of courts: where a legal rule exists, sooner or later a judge will be asked to interpret and apply it. Moreover, since gaps remain despite and perhaps because of the growing number of laws and judges are called to fill them, they are called upon to make a decision in the absence of clearly stated rules or to reconcile inconsistencies by choosing among competing interpretations. The welfare state In the meanwhile, the very nature of the law has changed. Besides traditional norms establishing what people can or cannot do - which leave relatively little room to judicial discretion - there are also new types
of rules, which do not simply aim to prescribe individual behavior. In fact, they seek to shape collective conduct and direct individuals and groups towards social and economic objectives, allowing a much wider discretion to the interpreter. The quantitative growth of legal regulations is thus coupled with this qualitative change. The political context However, even within similar political regimes, there are significant cross-national differences in the political prominence taken by the judiciary. Here the political context of courts matters: in fact, as we are going to see in lesson seven, political fragmentation tends to support judicialization. In fact, a fragmented
political setting seems to be less capable to take decisions or to produce them in a timely way. In this case, the lower decisional effectiveness of political structures leads to interests having an incentive in putting pressure elsewhere, for instance on courts, especially if courts are able to show their capacity - and willingness - to decide. The consequence of political fragmentation On the other hand, for fragmented political institutions is more difficult to confront and contstrain - judicialization, that is to assemble the political majorities needed in order to curb judicial power, for example by overruling unwelcome judicial decisions, reducing judicial independence,
circumscribing courts' jurisdiction or appointing accommodating or self-restraintist (cautious) judges. Fragmentation: the role of institutions A corresponding institutional setting can obviously support political fragmentation. Strong separation of powers is a case in point (http://www.britannica.com/ EBchecked/topic/473411/separation-of-powers). The best example is presidentialism, a political regime in which the advent of divided government - i.e. different parties controlling the executive and legislative branches - is made more likely. Also true bicameralism if leading to misalignments between
the two chambers or a proportional electoral law - making more likely multiparty governing coalitions can bring about a state of political fragmentation. Fragmentation: the role of institutions Also federalism, by pitting the central government against the states, supports fragmentation (see also the case of the European Union). Overall, a fragmented setting is likely to be the byproduct of a political transition in which no actor is able to impose its preferences, trust tends to be low and the uncertainty about the future high. In these cases, much more frequent in recent decades, judicial power offers an insurance policy for prospective losers in the electoral arena (
http://www.britannica.com/EBchecked/topic/203491/fed eralism) . Some cases of judicial power: the USA We will analyze the American case in depth later in week eight. However, US provides some flagrant example of judicial power The case Bush vs. Gore, decided in 2000 by the Federal Supreme Court, has had a dramatic impact on the American political system. At the end of very competitive presidential elections, the two candidates were divided only by a very narrow margin. The state of Florida emerged as crucial: getting a majority there implied winning the election. But Florida elections were contested. Not only were the two candidates divided by only a
handful of votes. But the voting in several precincts was challenged because of various irregularities. It emerged that a large amount of votes - predominantly in support of the democratic candidate Al Gore - has been declared invalid. Some cases of judicial power: the USA At that point, Gore asked for a recount of the votes, a request granted by the Supreme Court of Florida. The republican candidate, George W. Bush, appealed to the Federal Supreme Court. The Federal Court divided itself between a majority - composed of the five judges considered conservative, all appointed by Republican presidents - and a minority of four "progressive" judges. The majority, by barring a recount of the votes casted in
Florida, resulted in adjudicating the Presidency to George W. Bush, therefore affecting in a fundamental way the American political system. See the decision: http://www.oyez.org/cases/2000-2009/2000/2000_00_949/ . Some cases of judicial power: Germany Another example comes from Germany, from a court the Federal Constitutional Court - traditionally enjoying a high degree of legitimacy, as we are going to see in lesson seven. In the summer of 2012, most European decision-makers have waited with increasing anxiety the decision by the German court on the constitutionality of the German participation to the Euro rescue funds. In fact, according to some views, a negative decision on the
part of the court would had likely brought about the collapse of the Euro currency. Some examples of judicial power: Germany The decision, issued on September 12, rejected calls to block the permanent Euro-zone rescue fund - the European Stability Mechanism - and the European fiscal treaty. But the Constitutional Court imposed strict conditions, including a cap on Germany's contribution, which it said could only be overruled by the German parliament. Therefore, it deeply affected the currency management of the euro-zone. See the news: http://www.bbc.co.uk/news/world-europe-19579839; and http://www.bbc.co.uk/news/world-europe-19567867
Some examples of judicial power: Germany See the decision: http://www.bundesverfassungsgericht.de/SiteGlobals/F orms/Suche/EN/Entscheidungensuche_Formular.html?l anguage_=en The case was later referred to the Court of Justice of the European Union. In June 2015 the European Court ruled the Euro-rescue initiatives legitimate: http://curia.europa.eu/jcms/upload/docs/application/pd f/2015-06/cp150070en.pdf Other examples of the Courts influence can be provided by the decisions declaring unconstitutional the representation threshold of the electoral law for the European parliament. (See lesson 9)
Some cases of judicial power: Italy The impact of criminal justice on Italian politics on the political system cannot be neglected (Guarnieri 2013). For instance, the so-called Clean Hands (Mani pulite) investigations between 1992 and 1994 involved at least 5000 persons. Among them: almost 500 MPs and former MPs: among them, around 300 of those elected in 1992 (Parliament is composed of 950 members) several ministers: e.g. in the Amato cabinet (1992-93) 5 ministers resigned because of being formally investigated Some cases of judicial power: Italy the investigations resulted in at least 1200 convictions:
among them, all former leaders of the traditional governing parties (The so-called "Pentapartito") as a result, the "Pentapartito" was in practice wiped out from the political scene. At the end of 1994, the Berlusconi never ending criminal justice saga began to develop, a phenomenon running its course for more than 20 years! See, for instance, http://www.bbc.co.uk/news/world-europe-22513863. The Italian case will be dealt with in depth later in week nine. Other cases of judicial power: Brexit Another recent example of a judicial decision having a strong political impact can be found in the UK
Following the June 2016 referendum and the decision of the May cabinet to exit the EU, on the basis of the appeal of a citizen (Gina Miller), on 3 November 2016 the High Court ruled, against Government wishes, that Parliament had to legislate before it could invoke article 50 of the European Union Treaty and exit from the EU. The decision was confirmed by the Supreme Court (8 vs. 3) on 24 January 2017, constraining the Government to modify its strategy. Containing judicial power: Hungary Besides examples of judicialization, also cases can be found in which the political system has attempted with some success
at containing (and contraining) judicial power. One of the examples is Hungary After the collapse of communism, in the 1990s, Hungary was one of the countries introducing what are likely to be the most radical reforms in the administration of justice. Judicial independence was greatly strengthened, with the institution of a powerful Judicial Council, in charge of recruitment and promotion of ordinary judges. As for constitutional review, it was entrusted to a separate and independent Constitutional Court, according to the model envisaged by Hans Kelsen (more on this in lesson four). Hungary: judicial activism. Staffed with prestigious lawyers, the Hungarian Constitutional Court has been considered one of the most
activist in the word. For instance, in the first five years after its institution, in 1990, the court invalidated one third of the statutes it was called to evaluate (Gardbaum 2015). Among them, the Court stroke down laws on topics like the death penalty, sexual orientation discrimination and government's austerity program, this last decision having a strong impact on the State's budget. Although the court was praised at the international level as an example of progressive and liberal judicial policies, not all national political actors welcomed its activism. Hungary: the backlash The activism of Hungarian courts - and especially of the Constitutional Court - was increasingly criticized by right-wing political parties and groups. Already between 1998
and 2002 the right-wing government led by Viktor Orban tried to curb judicial power, but at that time it did not succeed, because of the lack of the supermajority needed for amending the constitution. However, in 2010, Orban has been able to come back to power, this time with a supermajority, and quickly moved to implement his plans. The new Constitution, enacted in 2012, heavily targets the ordinary and the constitutional courts. The independence of ordinary judges has been drastically circumscribed, by reforming the composition and powers of the Judicial Council. Hungary: the backlash Above all, the Constitutional Court has been "packed" with the appointment of new judges, more in tune with the political majority. In addition, the powers of the Court has been reduced, by prohibiting
judicial review of any law with an impact on the public budget (unless it infringes particular listed rights). Moreover, all Court's decisions enacted before the new Constitution have been nullified (Gardbaum 2015). The Orban's reforms have provoked strong criticism at the international and European levels. However, so far, the result has been a significant curbing of judicial power in Hungary, a fact likely to be related to the still weak legitimacy enjoyed the courts (Kosar & Sipulova 2017). Also Poland seems to be following a similar path: http://www.dw.com/en/polands-government-seeks-total-control-of-thecourt-system/a-39702171 Courts and politics: a complex relationship As we are going to see, the relationships between courts
and politics are highly complex, because of the large number of intersections between them as well as the magnitude of the values at stake. The task of regulating these relations and the search for appropriate institutional arrangements should take into account such complexity. However, this relationship is vital for the dynamics of contemporary democratic regimes. In fact, judges are inevitably part of the political system, although they operate in a way different from other political actors. Courts and politics: a complex relationship As we are going to see in the next lesson, the special
position judges usually enjoy is well justified by the functions they perform, but without some institutional regulation of their power, there is a risk of opening up more opaque channel of influence between judges and political and social groups. This would run counter one of the basic traits of modern constitutionalism: to limit and check political power (Shapiro 2013). In this course we are going to analyze in depth the ways these relations are arranged in various countries, their implications and the factors explaining crossnational variation. References Dahl, R., Decision-Making in a Democracy: The Supreme Court as a National Policy Maker, in "Journal of Public Law", 1957, pp.289ff. http://epstein.wustl.edu/research/courses.judpol.Dahl.pdf
Dworkin, R. (1978), No Right Answer?, in "New York University Law Review", 53, pp. 1-29. Friedman, L.M., Is There a Modern Legal Culture? in "Ratio Juris", 1994, pp. 117-131. http://onlinelibrary.wiley.com/doi/10.1111/j.14679337.1994.tb00172.x/ abstract;jsessionid=E71711B57240D4B4824946F621909D51.f01t02 Gardbaum, S. (2015), Are Strong Constitutional Courts Always a Good Thing for New Democracies?, in "Columbia Journal of Transnational Law", 53 , pp. 285-320. http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2552816 References Guarnieri, C., Courts Enforcing Political Accountability. The Role of Criminal Justice in Italy, in Diana Kapiszewski, Gordon Silverstein, Robert A. Kagan (eds.) Consequential Courts. Judicial Roles in Global Perspective, Cambridge University Press, 2013, pp. 163-180:
http://books.google.co.uk/books?hl=it&lr=&id=FoJTDS7Pw3sC&oi=f nd&pg=PR11&dq=+autore:kapiszewski+autore:kagan&ots=ES3xe dY_0M&sig=m4JZHeFaGTOdhnvRO7xWS7wluC0 Kosar, D. and K.Sipulova, The Strasbourg Court Meets Abusive Constitutionalism, in Hague Journal on the Rule of Law, 2017 Marshall, T. H. (1950). Citizenship and social class and other essays. Cambridge: Cambridge University Press Sartori, G., Constitutionalism: A Preliminary Discussion, APSR, 1962, pp. 853 ff: http://journals.cambridge.org/action/displayAbstract? fromPage=online&aid=8745973&fileId=S0003055400078552 References Shapiro, M. (2003), Judicial Review in Developed Democracies, in "Democratization", pp.7-26. Shapiro M, (2013), Judicial Independence: New
Challenges in Established Nations, in Indiana Journal of Global Legal Studies, XX, n.1, pp. 253-277. Stone Sweet, A. (2000), Governing with Judges, Oxford, Oxford UP. ( https://books.google.it/books?hl=it&lr=&id=61AzsGk7 EW0C&oi=fnd&pg=PR13&dq=autore:alec+autore:sto ne+autore:sweet&ots=thbCvrdnT6&sig=kTcujP9HA8cL yJSBCC9sHOSJH 2. The process of adjudication and the role of the judge in constitutional states The triad To understand the role played by a judge in the
political system, and therefore the relationships between courts and politics, the nature of the proceedings in which disputes are resolved judicially needs to be considered (Shapiro 1981). Judicial action is a mean of dispute resolution that employs a third party as a facilitator. In fact, third party interventions are a widespread practice in society because they tend to promote a relatively rapid and peaceful mean of dispute resolution. The triad: the mediator Various types of these "triadic" proceedings can be distinguished, according to the nature and importance of the third party. For example, a mediator is placed between the parties in conflict and proposes a solution to
their dispute. The success of the mediator's initiative is wholly in the hands of the disputants, since they retain the right to reject the mediator's proposed solution. It is therefore not crucial that either or both parties to the dispute choose the mediator, since each one is always free at any point in the proceeding to reject the proposed solution and to terminate the process. The triad: the arbiter In the case of the arbiter the decision of the third party is binding. Thus, the parties in dispute not only entrust the arbiter with the task of resolving their dispute but also recognize the arbiter's ultimate authority. Once they have chosen the arbiter - and in some cases also the rules she must follow in deciding
their case - the parties in dispute must comply with the arbiter's decision: unlike mediation, they do not retain the option to refuse to comply. The triad: the arbiter In this sense, arbitration is more effective than mediation, since it is bound to bring about a resolution of the conflict. However, its effectiveness must be balanced with the higher risks the parties to the dispute incur in arbitration, since they must relinquish large part of their freedom of action. However, the risks for the parties are much higher if their case is going to be decided by another, but much more forceful third: the judge.
The triad: the judge In judicial proceedings, where an externally appointed judge acts as a third party, the freedom of action of the parties to the dispute is limited even further. They must comply with the judges decision, even though they have no control over the choice of the judge, whom the state imposes. In general, judicial proceedings are much more effective than other proceedings because they do not need the consent of both parties to achieve a resolution of the dispute. However, one should weigh this effectiveness against the risks for the disputing parties who must relinquish much more control over the proceeding.
The triad: the judge Judicial proceedings are usually initiated without mutual consent, as legal disputes are triggered by the action of one party against another. In some cases, for example in criminal proceedings, a public prosecutor acting on behalf of the state can initiate proceedings, not only against the will of the accused, but also without the consent of the victim. For these reasons, judges are inherently placed in a difficult position. They must resolve cases without the main element that makes the triad an effective means of resolving disputes in other triadic proceedings: the willingness of the participants to submit to both the proceedings and the authority of the third party.
The process of adjudication: the procedure To address the crisis of consensus always latent in the judicial process, the judicial proceeding tends to be based on a set of principles aiming at assuring the parties that their case will be treated fairly. These principles usually expressed in Latin - include: No ad hoc judge: the judge must not be appointed for adjudicating only a specific case. Her jurisdiction must follow from general rules and therefore pre-exists to the case. Nemo judex in causa sua: the judge cannot have a personal interest in the case. The process of adjudication: the procedure
Nemo judex sine actore: the judge must assume a passive stance. She should not initiate a case independently. Et audi alteram partem: the parties must be able to present their case to the judge. Another element that reinforces the appearance of fairness of the procedure is the fact that judicial decisions tend to be bound by a system of legal norms. This reliance on pre-existing norms aims to temper the disappointment of the losing party and, above all, prevent the judge from appearing personally responsible for the decision. The process of adjudication: the law In fact, the principle of legality - that judicial decisions
must be based on the law - performs an important function in adjudication. If the judge applies pre-existing and well-known norms, her decision cannot be considered the by-product of her will but of all society. In addition, the fact that norms are pre-existing and wellknown implies that the parties "had" to know them. Although this assumption cannot always be considered realistic, its capacity of legitimizing the role of the judge is significant. The process of adjudication: the law Above all, if the judge is only "applying" the rules, she cannot be considered responsible for an adverse decision. However, preexisting and well-known norms are not always available. Moreover,
legal texts are often unclear: they must be interpreted by the judge. For instance, is the death penalty a cruel and unusual punishment (8th Amendment to the US Constitution)? The judge must give meaning to the legal text, and the outcome is often disputed. In other words, often different interpretations exist of the same text and the judge must choose: this is the case of judicial creativity. The judicial interpretation of the law opens several significant problems. For instance, since the judge is creating the very norms she must apply to the case, how can the parties know the norm? The growing complexity of the legal system Contemporary legal systems tend to exhibit a growing
complexity. In fact, the sources of law tend to multiply. Here, a short catalogue of the most important (of growing significance): Custom: i.e. accepted social practices Judicial precedents: i.e. previous decisions by courts Statutes: usually enacted by parliament The growing complexity of the legal system Codes: i.e. a set of complete, coherent, clear norms regulating a specific area of human behavior National constitutions Supranational constitutions The complexity of these sets of norms - several of them tend to be characterized by vagueness and
indeterminacy - makes some degree of judicial creativity unavoidable, with possible consequences on parties consensus vis--vis the process of adjudication. The process of adjudication: the judge The attempt at addressing the crisis of consensus of adjudication obviously involves also the judge: as we have seen, a strong effort is made at guaranteeing her impartiality. More specifically, the need to guarantee judges' impartiality - or at least its appearance implies that they must be independent from the disputing parties and protected from their interference. Such independence is a necessary condition for safeguarding judicial impartiality, as any judge who is
dependent in some way on one of the parties cannot be, and especially cannot appear to be, impartial. The process of adjudication: the judge In the political development of Europe, the incorporation of judges into the machinery of the state and the superiority of government-appointed judges over other types of judgesfor example, feudal or city judgeshave largely guaranteed judicial independence from the parties in dispute, at least in the case of private citizens. The process of adjudication:
the judge However, the incorporation of the judge into the state organization creates the need to redefine judicial impartiality when one of the parties is the state itself or one of its representatives. In this case, only by defining judicial independence in relation to the state can the judge act as an impartial third party in disputes between the state and the citizens (for instance in criminal trials or administrative cases). Judges can then become an effective check on the way public functions are performed, since guarantees of independence allow judges to resolve such disputes and interpret the relevant laws without coming under pressure from the state.
The role of the judge in constitutional states The fact that guarantees of independence allow judges to solve disputes without being under pressure from the state explains why the protection of judicial impartiality through strong guarantees of independence became one of the most important traits of modern constitutionalism. The role of the judge in constitutional states Since one of the main objectives of constitutionalism is to limit the arbitrary exercise of government power and to make it legally accountable (Sartori 1987), submitting the performance of public functions to the scrutiny of an independent body
becomes an effective - and essential - check on the exercise of political power. It ensures the supremacy of the law and therefore is a fundamental step in building a constitutional state. However, although independent judges are an important tool for limiting political power - as pointed out by Montesquieu and the Federalist n.78 - because of this very reason they also tend to play and inevitable political role, as recognized by Tocqueville. Judges in continental Europe Even though some degree of judicial independence exists in all constitutional regimes, there are important differences among countries, particularly between those continental European countries, where the civil law prevails, and common law , Anglo-Saxon countries (for the distinction
see: Merryman and Perdomo 2007). Historically, judges in civil law countries have enjoyed less independence and their role has tended to be far less politically significant. In those states, the monarchy brought about the centralization of political authority, including the judicial function, to which judges were initially subordinated. Judges in continental Europe The constitutionalizing of political power and the consequent development of judicial guarantees of independence partially weakened this relationship, but the organizational integration of the judiciary into the structure of public administration was maintained if not
strengthened. The decline of the monarchy during the nineteenth century did not radically alter the situation; it merely transferred the power to exert influence over the judiciary to a parliamentary executive. However, as we will see in lesson five, in the second half of the XX century judicial independence has been strengthen in several continental countries. Judges in Anglo-Saxon countries In England, the centralization of political authority resulted in the hegemony of one institution: Parliament. However, judicial independence was recognized very early: in art. III of the 1701 Act of Settlement: https://en.wikisource.org/wiki/Act_of_Settlement_1701 . Moreover, the political context of such a development has been more
polycentric than in continental Europe. The political branches do not monopolize the creation of legal norms since an important role has always been reserved for judicial decisions: stare decisis (to respect previous decisions) is still a fundamental principle of common law systems. As a result, English judges have always been able to maintain some autonomy in relation to parliamentary statutes. The common law principles that judges have developed remain one of the basic elements of English law. Judges in Anglo-Saxon countries In the United States, a written Constitution combined with judicial review of legislation has ensured from the outset that the judiciary would not be subordinate to the political branches:
http://www.usconstitution.net/xconst_A3Sec1.html. On the contrary, following the rules laid down by the Constitution, the American judiciary has emerged as an equal power to the legislature and the executive, and its main task has been to balance lawmaking power in a constitutional system of checks and balances. See how this stand is argued in The Federalist n.78: http://thomas.loc.gov/home/histdox/fed_78.html The points of reference of judicial independence Summing up, in any constitutional state whose foremost objective is to safeguard the rights of citizens, judicial independence is primarily aimed at guaranteeing and supporting judicial impartiality in
the adjudication process. Consequently, its main point of reference must be the state and its institutions, particularly the executive, which directly or indirectly is most often a party to such adjudication. The best illustration of this participation are criminal trials where one of the parties to the dispute is usually the public prosecutor. The points of reference of judicial independence However, with the introduction of judicial review of legislation, since judges have to adjudicate parliamentary statutes, the legislature also becomes a point of reference for judicial independence. In this case, the judiciary can be considered as a power on the same level as the legislative
and the executive: it becomes a veritable Third Branch, as jurists often refer to it in the United States. Thus, the political significance of judicially resolving disputes should be clear. Adjudication is, after all, a case in which the basic political function of the authoritative allocation of values is performed. Judicial independence: its content Broadly speaking, all democratic constitutional systems approach judicial independence in similar terms: in principle, judges are subordinate only to the law. However, differences emerge when considering the status that judges enjoy and, above all, the way their guarantees of independence work in practice. As we are going to see in lesson five, the most significant elements
of judicial independence concern appointments, salary, transfers, disciplinary proceedings and career patterns, with the last factor being the most important variable characterizing the organizational structure of the judiciary. All of them determine the position of individual judges in relation to their colleagues and those responsible for decisions affecting their professional life. Judicial independence: its content Taken as a whole, one can use these elements to assess the extent of both internal and external judicial independence. While external independence refers to the relations between the judiciary and other branches of government, internal independence focuses on guarantees aimed at protecting
individual judges from undue pressures from within the judiciary: fellow judges and, above all, superiors (Shetreet 1985). Although not always considered in full, the role played by organizational hierarchies is crucial for understanding the internal dynamics of the judiciary, which in turn affect the actual degree of judicial autonomy. Here is still relevant the distinction between the common and civil law traditions, as they create two alternative models of judicial organization. Institutional and behavioral independence Although guarantees of independence or institutional independence are designed to protect judges from improper pressures, they cannot assure their independent - and therefore impartial - behavior. First of all, complete judicial autonomy is
difficult to conceive, because judges cannot be completely isolated from the social and political environment. Moreover, complete autonomy is not synonymous of impartiality. Therefore, we should distinguish between institutional independence and independence on the bench or behavioral independence. Although the first can be considered an important condition of the second, they do not coincide (Russell and O'Brien 2001). Institutional and behavioral independence You should not rule out the possibility of having a fully independent judge behaving in a rather partial - or even corrupt - way or judges with only low guarantees of independence behaving in a fair and impartial way.
In fact, such occurrences are not unheard of. Much will depend on the political and organizational contexts in which the judge is inserted, as we are going to see later in the course. References Canivet, Guy, Mads Andenas and Duncan Fairgrieve (eds.) (2006). Independence, Accountability, and the Judiciary, London, British Institute of International and Comparative Law. Cappelletti Mauro (1989), The judicial process in comparative perspective, Oxford, Oxford UP. Guarnieri, Carlo (2012), Judges, their careers, and independence, in D. S. Clark (acd), Comparative Law and Society, Cheltenham, Elgar, 2012, pp. 193215
References Merryman, John and Rogelio Perez Perdomo (2007). The Civil Law Tradition. Stanford: Stanford University Press: http://books.google.co.uk/books?hl=it&lr=&id=Z9B8GaU 2BqoC&oi=fnd&pg=PR11&dq=autore:merryman+autore :perdomo&ots=w9voHJIfcT&sig=9I1BpY009AjVW2vGCOa 7o7HLY84&redir_esc=y#v=onepage&q&f=false . Russell, Peter H. and David OBrien (eds.) (2001). Judicial Independence in the Age of Democracy. Charlottesville: University Press of Virginia: http://books.google.co.uk/books?hl=it&lr=&id=MADgmK dYMBsC&oi=fnd&pg=PR7&dq=judicial+autore:russell+a utore:o+autore:brien&ots=QjWSE4yiaS&sig=XOy7Y_UCzl
oq65a7UVvgcbFA7KI&redir_esc=y#v=onepage&q&f=fals e References Shapiro, Martin (1981). Courts. A Political and Comparative Analysis. Chicago: The University of Chicago Press: http://books.google.co.uk/books?hl=it&lr=&id=nVWb99Sd808C&oi =fnd&pg=PP9&dq=+courts+autore:martin+autore:shapiro&ots=5 OQ89kgJf5&sig=z51s5Gs9ZbPS7jEvEcLhFaHDpIA&redir_esc=y#v= onepage&q&f=false . Shetreet, Shimon (1985), Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in Shimon Shetreet and Jules Dechnes (eds.), Judicial Independence: The Contemporary Debate 637-38, Dordrecht, Nijhoff:
http://books.google.co.uk/books?hl=it&lr=&id=jEG0KVCu_soC& (oi = fnd&pg=PR10&dq=+ independence+autore:shimon+autore:shetreet&ots =aDTY1TvY-g&sig=jylo0gD7vyV3zBXmJthSIX74QKM&redir_esc= 3. Assessing judicial power: the judicial system and its access The political significance of courts The role actually played by the judge in the political system depends, first of all, on the way the judicial system that is, the institutions and the processes in
charge of adjudication - is arranged. Therefore, the political environment can influence judicial power not only directly, for instance by limiting the independence of judges, but also indirectly, by affecting the way the judicial system is organized. The politically significant traits of the judicial system are several. The most relevant are: The Jurisdiction: the types of disputes that can be adjudicated (see table below) The political significance of courts The access to the judicial system, which in turn is influenced especially by: the general conditions governing access
the support structure the role of public prosecution The role played by the supreme courts And the general configuration of the judicial system: e.g. centralization vs. fragmentation The judicial structure can vary considerably from country to country. Instead of reviewing those differences in detail, the focus here will be on the variations likely to have a direct or indirect influence on the political significance of courts. Types of disputes As already pointed out, the first element to take into account is jurisdiction: the types of disputes a judge can be asked to settle. At least in principle, the larger the types of disputes entrusted to
courts, the stronger the political significance of the judicial system. However, often different types of disputes are entrusted to different courts. In fact, an indirect strategy of control of judicial power affects the structure of the judicial system and aims to reduce the potential impact of judicial decisions by limiting courts jurisdiction, thereby restricting their role in the political process. Therefore, a first assessment of the political significance of courts can be carried out through an analysis of the types of controversies referred to them. Types of disputes Defendant Plaintiff
Private Private Public Civil Administrati ve Public Criminal
Constitution al The configuration of the judicial system Jurisdiction provides the starting point for assessing the scope of courts. In practice, the main point here is on whether jurisdiction over cases is concentrated in a unitary system of courts or fragmented into a plurality of different courts with their own separate hierarchical structures. Clearly, the more far-reaching the scope of judicial decisions is and the more coherent their content, the more politically significant a judges role is likely to be. Regardless of any formally stated goals, the creation of a separate autonomous
set of courts inevitably curtails the scope of ordinary courts, especially over politically sensitive issues, since it increases the likelihood of conflicts of jurisdiction. The configuration of the judicial system Moreover, special courts are often staffed by a separate group of judges with weaker guarantees of independence than those granted to ordinary judges, and in such cases, closer connections with the political system often exist, especially with the executive branch. In general terms, the fragmentation of the judicial system can be seen as a mean of decreasing the political impact of courts while preserving some
degree of institutional independence (Guarnieri and Pederzoli 2002). Judicial fragmentation in practice In some cases for instance, in most continental European countries - the judicial system tends to be fragmented. For instance, while criminal and civil matters are usually entrusted to ordinary courts, administrative and constitutional litigation often comes under the jurisdiction of specialized courts. In addition to this horizontal fragmentation, there is another way of dividing jurisdiction; the dual structure of federal government usually creates a division between national and regional courts, which has the
consequence of restricting their potential scope. Judicial fragmentation in practice See the case of German judicial system, characterized by jurisdictional and federal fragmentation ( http://www.coe.int/t/dghl/cooperation/cepej/profiles/Court SystemGermany.pdf ) and confront with the US federal judicial system ( http://wlwatch.westlaw.com/aca/west/images/uscrtsys.gif ) or with the rather centralized UK ( http://www.judiciary.gov.uk/wp-content/uploads/2012/08/c ourts-structure-0715.pdf ) and French systems (
http://www.justice.gouv.fr/organisation-de-la-justice-10031 /lordre-judiciaire-10033/ ) Access to courts To fully understand the role courts play, one also has to consider how and to what extent their potential area of political intervention is exploited. The focus here is on a set of elements, usually referred to as access to justice or 'access to courts, which together define the way courts can be activated. We are therefore going to consider the main mechanisms that either foster or discourage the use of courts and shape the demands individuals and groups bring to the judicial system. In addition, the role played by those able either to control access to the courts or influence the cases that are heard also needs to
be considered. Among them, the public prosecutor plays an extremely significant role, especially in the criminal process. General condition of access Unlike other political actors, a judge is always required to decide a case once asked to do so: a judge cannot deny justice. While people controlling strategic resources can more easily access legislative and administrative bodies, in principle every citizen has the possibility - and sometimes even a constitutionally-protected right - to go to court with the legitimate expectation of receiving a judgment. Theoretically, this makes the judiciary a relatively more accessible institution because litigants do not need great resources or the support of a larger group to bring a case.
General condition of access As a result, courts are better equipped to process individual claims than other political institutions, but a lawsuit, even when filed by an individual, can raise general issues affecting the whole community. Therefore, as a rule, everyone has the opportunity to use legal action to vindicate individual rights and articulate political demands, an opportunity increasingly realized by individuals and groups. Legal mobilization Although it is acknowledged that access opportunities are not equally distributed, resort to courts is an important means of participating in the political
process, and this in turn helps to give legitimacy to the political role of courts. However, all judicial systems set limits to access, although the forms and goals of these limits may differ. Legal mobilization Limits may be imposed to reduce litigation rates and prevent the system from becoming overloaded, for instance by creating mechanism for alternative dispute resolution: http://www.law.cornell.edu/wex/alternative_dispute_resolution. In other cases, standing to sue ( http://www.britannica.com/EBchecked/topic/563064/standing-t o-sue ) may be granted only to people having a direct and personal interest at stake, thereby excluding individuals and groups
who could nonetheless be affected by the decision. For this reason, the mechanisms that influence court intervention are crucial variables in understanding the political significance of courts. Justice supply The decision to file a lawsuit is also related to other factors that can be classified under the general concept of "justice supply". These factors relate to the overall efficiency of the judicial system in processing demands (e.g. the time needed to dispose of a case) and seem to be a more significant source of variation between countries than legal culture. Also legal costs play obviously a crucial role in
assessing the efficiency of the judicial system. Justice supply The costs of litigation include not only trial expenses and lawyers fees but also social as well as psychological costs. The economic cost of litigation has historically been the first barrier to increasing access to justice (Cappelletti 1981). The traditional laissez-faire approach was limited to requiring lawyers to provide free legal representation to those too poor to afford it. The development of the welfare state inevitably brought about reforms that extended state support to include the creation of legal advice and assistance bureaus. It is in this context that the so-called support structure plays a role (Epp 1998).
The support structure The success of legal mobilization - for instance, in implementing fundamental rights - depends also on litigants' resources and more precisely on the availability of: Rights-advocacy lawyers: rights' implementation cannot be brought about by isolated judicial decisions. It depends on sustained litigation, that is on a constant flow of cases, that monitor the actual implementation of the original decision. See for instance, the case of civil rights in the USA: http://www.britannica.com/EBchecked/topic/119368/Amer ican-civil-rights-movement The support structure
Rights-advocacy organizations: sustained litigation needs resources (monetary and not: for instance, the development of specialized legal skills) Sources of financing: monetary resources for legal mobilization and litigation must be available in society (by public agencies, private foundations...) Without a robust support structure legal mobilization is unlikely to bring about the set of judicial decisions capable to trigger social and political change. This is one of the reasons why non-democratic or semi-democratic regimes often try to obstruct the emergence of such structures. The role of public prosecution In all democratic regimes, public prosecutors are responsible for requesting the judicial application of the criminal law. They,
therefore, participate in the process of rule-application, as well as in a basic political function of the state: exercising the monopoly of legitimate violence. ( http://www.britannica.com/EBchecked/topic/479366/prosecutor ) In all democracies, the status of public prosecutors differs according to their levels of autonomy and responsibility: autonomy because the prosecutors decisions in individual cases should neither be nor appear to be influenced by partisan considerations; responsibility because of the relevance those decisions have for the implementation of criminal justice policies. These differences are partly related to the civil and common law traditions. The role of public prosecution In civil law, continental Europe prosecution is placed within a trial structure primarily aimed at implementing state policies, with no specific
consideration given to the attitudes of either the victim or the defendant. In the continental context where the bureaucratic tradition is more deeply ingrained, public prosecutors and judges have assimilated the most and, according to legal doctrine on the continent, criminal prosecution is expected to be "impartial". This means that the primary task of the prosecutor is not to win the case but to help the judge discover the truth. As an impartial party, the prosecutor is often portrayed as performing functions exclusively on behalf of the state. ( http://www.britannica.com/EBchecked/topic/384210/ministere-public ) In common law countries, where the criminal process has always been devoted to settling disputes, the public prosecutor primarily represents the victim. The powers of public prosecution
The public prosecutor affects the political significance of the judicial system by influencing the inflow of cases considered by the courts. In spite of variations in their tasks in different judicial systems, all prosecutors share a number of important powers: initiating proceedings, supervising investigations, deciding whether to prosecute or propose the dismissal of a case,
at times participating in an inquiry directed by a judge, and pleading in the course of the hearing. The powers of public prosecution The criminal justice system relies heavily upon prosecutors discretionary powers; in fact, it could not work without some filter and therefore without some form of discretionary evaluation. One way to distinguish between prosecution systems in different countries is to identify the limits and controls set on discretionary powers. Here, structure - rather than procedural principles - is more important in practice. For example, even in systems that allow private prosecutions, the prosecutor is given far more resources than any citizen,
which can account for the extremely low number of private suits. The powers of public prosecution Even the distinction between compulsory and discretionary prosecution should not be exaggerated; for instance, although the principle of compulsory prosecution has some symbolic value, in practice prosecutors operating under this principle still have scope for choosing which cases to prosecute. The discretionary powers of prosecutors do not depend just on procedural rules, but above all on the tasks prosecutors actually perform and the controls over their performance. It is likely
that a narrow definition of prosecution tasks, an effective system of organizational control, and a career structure that is dependent on hierarchical superiors is much more likely to restrain discretion than the principle of compulsory prosecution alone. Prosecutors and judges To assess the role of public prosecutors in the judicial system, one of the main dimensions to consider is the relationship between the judge and prosecutor. The first question is whether judges and prosecutors form a single professional body. In principle, in judicial systems where they do (Italy and France) this should result in an increase in prosecutors powers, especially in relation to defense lawyers who lack such
connections to the judge. Prosecutors and judges Guarantees of prosecutors independence are also important. In continental Europe, for example, the subordination of the prosecutor to the Minister of Justice historically enabled the executive to influence the judicial system, and this remains the case to some extent in France and Germany. In addition, the relationship with the judge is also influenced by the structure of the legal process, particularly the criminal process. Where there is an instructing judge, the question of who plays the most relevant part in the pre-trial stage is especially important, and the answer will depend on both legal rules and legal practices ( http://www.vie-publique.fr/decouverte-institutions/justice/fonction
nement/justice-penale/quoi-sert-juge-instruction.html ). The relationships with the police The relationships of prosecutors with the police are another significant element. The police (especially units established to work closely with the judiciary, such as the French police judiciaire ( http://www.police-nationale.interieur.gouv.fr/Organisation/Di rection-Centrale-de-la-Police-Judiciaire ) or the Italian polizia giudiziaria) performs an important function in the criminal justice system, since its main task is to investigate crimes under the direction of the prosecutor or the instructing judge. In such cases, the
ability of prosecutors to play an active role in the judicial system and exert influence is determined by their ability to direct police behavior. The relationships with the police Overall, several types of police-prosecution relationship exist, ranging from a situation in which autonomous organizations must co-ordinate their activities (the situation in most Anglo-Saxon countries) to cases where the police are subordinate to prosecutors (typical of civil law countries). However, even in civil law countries, the police plays an integral and to some extent, autonomous - role in the investigation phase.
Status and organizational structure The ability of prosecutors to act autonomously and the interests they are likely to take into account also depend to a great extent on their status - i.e. the degree of autonomy they enjoy - and the career structure of their organization. For instance, regardless of their guarantees, it is likely that career prosecutors who tend to remain in the organization until retirement (such as those in continental Europe) will exhibit less autonomy than those who serve for a limited period of time and who may easily move between the public and private sectors (such as those in the United States). Status and organizational
structure Finally, a system of public prosecution that is decentralized - as it is the case in the United States (http://www.justice.gov/usao/) is more likely to bring a variety of views and demands into the judicial system. By contrast, a highly centralized system of public prosecution - as in France ( http://www.vie-publique.fr/decouverte-institutions/justi ce/personnel-judiciaire/magistrats/qu-est-ce-que-parqu et.html ) - can lead to an increase in power and visibility for prosecutors, which in turn can justify the adoption of external (i.e., political) controls. Public prosecution in democratic
countries Structure England United States Germany France Italy unitary federal
federal unitary unitary separate separate combined combined Recruitmen separate t in relation
to judges Recruitmen professional professional public public public competition t method appointmen appointment competiti competiti t on on Recent developments Regardless of national differences and legal traditions, the growing intervention of the state in society has also affected the role of public prosecutors in the
criminal process. The expansion of state regulation and the already emphasized growing complexity of the legal system - has increased the potential for violations of the law, and the ways in which crimes are defined have also changed. Recent developments The definitions of criminal violations have lost the precision that once allowed a strict i.e. an executory - interpretation of the law. Infractions are increasingly worded in broad terms, and therefore it is left up to the judge - and to the prosecutor - to qualify facts within the ever-changing framework provided by these vague texts. At the same time, these developments have created a larger role for public prosecutors and increased their demands for
greater autonomy from the executive branch. Subordination to the executive tends inevitably foster suspicion that, where the interests of the executive are at stake, legal rules are not enforced with enough vigilance or impartiality. The role of supreme courts The supreme courts are especially important because they play a crucial role in ensuring consistency in judicial decisions. Two general models exist. In the co-ordinate system (as we are going to see, usually associated with professional judiciaries) complaints that reach the top of the judicial pyramid are the exception rather than the rule, so that lower and intermediate courts make the majority of decisions.
The role of supreme courts The hierarchical system (usually associated with bureaucratic judiciaries) allows a substantial portion of lower court decisions to be re-examined by the supreme court, enabling it to exercise control over the lower courts (Damaska 1986; Shapiro 1981). Two different types of logic underlie these arrangements and are related to the role supreme courts play, the institutional mechanisms used to reinforce their authority, and the rules governing the judicial workflow (such as those regulating appeals). The role of supreme courts In principle, judicial systems that are characterized by
a centripetal dynamic, namely by a strong decisionmaking court at the top, are better equipped to ensure the consistency of judicial decisions, which is considered a fundamental value conducive to the certainty of law (e.g. England). This can lead to an increase in the political significance of the judiciary: judicial policies that are relatively consistent and stable over time can provide a point of reference not only for individual citizens but also for interest groups. The role of supreme courts By contrast, a centrifugal dynamic, which promotes the autonomy of lower and intermediate courts, tends to reduce internal consistency (e.g. USA). Here, internal consistency may be considered less important, with a more pragmatic stance taken on the matter of the certainty of law.
On the one hand, this lower degree of consistency may undermine the coherence of the system and is perhaps likely to foster litigation, thereby reducing the political impact of justice. On the other hand, such pluralist jurisprudence may also strengthen the perception that individual and lower-ranking judges are impartial and less influenced by supreme court rulings. In turn, such pluralist jurisprudence may enhance individual and collective willingness to use courts to pursue social goals. Summing up: centralization vs. fragmentation General setting: Jurisdiction: unitary vs. fragmented Decision-making: supreme court vs. lower courts Prosecution: centralized vs. diffuse
Centralization => political influence Trends in Europe: Erosion of judicial hierarchies (see lesson five) Competition among courts (national and supranational) The role of the media (especially in criminal cases) References Cappelletti M. (1981a) (ed.), Access to Justice and the Welfare state. Florence: Le Monnier. Damaska M. (1986), The Faces of Justice and state Authority. New Haven: Yale University Press: http://books.google.co.uk/books?hl=it&lr=&id=wpm7Aj3BI60C&oi=fn d&pg=PR11&dq=justice+autore:damaska&ots=sKrOApLIyU&sig=8Th Wcr-DA3VAJ3Xqoe-RQS278NU&redir_esc=y#v=onepage&q&f=false
Epp C. (1998), The Rights Revolution, Chicago, The University of Chicago Press. (or: http://books.google.co.uk/books?hl=it&lr=&id=8ZvEVHqK17IC&oi=fn d&pg=PA343&dq=rights+revolution+autore:Charles+autore:Epp&ots =raCPc31pUh&sig=KOZLqqNjheq6siYugn60t5YKLRY&redir_esc=y#v= onepage&q&f=false ) Guarnieri, Carlo and Patrizia Pederzoli (2002). The Power of Judges. Oxford: Oxford University Press: 4. Assessing judicial power: the powers of the judge The structure of the judicial process
From the moment a complaint is filed in court until a judgment is given, a network of interactions is set in motion involving numerous actors. These include judges, litigants (including the public prosecutor), the police, witnesses, and experts. While the structures to organize and manage these sets of relationships are often complex, it is possible to distinguish two main stages: (1) the pre-trial phase which is aimed at preparing the case, and (2) the trial which takes place before a judge, sitting alone, part of a panel, or sometimes in the presence of a jury. The structure of the judicial process To understand the role of judges and the importance
of the functions they perform, we should focus on the division of tasks and powers of the different trial participants. The rules shaping both the structure and process of the trial justify the exercise of judges powers and their decisions, but also allocate resources to participants to influence the development of the case. The structure of the judicial process Within the constraints of those rules, the participants have significant scope to make choices about factual and legal issues
submitted to court, as well as the form of proceedings. For instance, in a number of countries defendants are allowed to decide whether their case will be heard in a full trial or in a shortened proceeding, or to request a jury trial ( http://www.ohrn.nhs.uk/resource/policy/arejuriesfair.pdf ). The legal process in individual countries is often differentiated as either inquisitorial or as a contest or adversarial, each of which labels reflects a very different allocation of powers. The inquisitorial process focuses on the judge, while the adversarial emphasizes the role of litigants and their legal counsel. The main traits of both types are summarized in the table (Langer 2014). Adversarial vs. Inquisitorial process
Adversarial vs. Inquisitorial Structure Procedure Appeal Aim Judge Triadic vs. Dyadic Oral vs. Written Reduced vs. Extended Dispute resolution vs. Policy implementation
Referee vs. Manager The adversarial process The adversarial arrangement seems to have emerged earlier, replacing ancient forms of dispute resolution (the feud and trial by ordeal), and it still retains some traces of its origins. Today, it is based on direct confrontation between the two disputants through their legal representatives, who tend to become the leading actors. It is up to the lawyers to prepare the case, to define and present both factual and legal issues, to collect evidence, and to interrogate witnesses before and during the trial. The allocation of powers is similar to a zero-sum game, and the adversaries control over the case results in an almost parallel curtailment of the judges prerogatives.
The adversarial process In this context, the judge is expected to act as a sort of neutral and passive arbiter, whose function is to ensure that rules providing equal opportunities for both parties are followed. The judge cannot interfere with the confrontation between the litigants, otherwise the image of judicial impartiality would be seriously undermined. England and the United States are examples of adversarial process, even though this is more evident in criminal than civil proceedings. For a faithful representation of the traditional English trial: see http://www.listal.com/movie/witness-for-the-prosecution . The inquisitorial process
Under the non-adversarial or inquisitorial arrangement, parties to the dispute are not the main actors. Once legal action has begun, even in civil litigation, the process tends to lose its private nature and to become a state affair. It is controlled by a judge who is expected to represent interests other and higher than those of the litigants. Hence, the judge is given control over the entire sequence of events, from the preliminary stage through to the trial. This active role expands the scope of judicial powers, especially in the preliminary phase. Here, the judge - usually defined "instructing" judge - has extensive powers over fact finding and determines when the case is ripe for adjudication. These prerogatives also extend to the conduct of the trial, and judges are able personally to interrogate both the parties in dispute and witnesses without any intervention by the lawyers representing the parties.
The inquisitorial process France ( https://www.youtube.com/watch?v=Z0Ym_3I0ZUM ), Portugal, and Spain still retain the traditional nonadversarial, inquisitorial structure, while Germany and Italy have abolished the investigating judge, therefore creating a marginally more adversarial aspect to the criminal process. It is therefore evident that the structure of the process is related to the ends assigned by the political system. The ends of the judicial process Damaska (1986) has suggested a classification for distinguishing a process that simply aims at solving conflicts
from one that is devoted to implementing policies ( http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article =2582&context=fss_papers ). This distinction can be related to different conceptions of the state and its relationship to society: between a state that narrowly defines its functions and one that interprets its role broadly. While the first conception emphasizes the role of individuals, their rights, and autonomy, the second tends to favor the community, the interests of which may ultimately supersede individual claims. The ends of the judicial process A state concerned primarily with individual rights will conceive of the
judicial process as an arena available to litigants to put forward their respective claims in a largely autonomous way. The main objective of the process here is to resolve a specific legal dispute peacefully. In ritualized form, these lawsuits retain some elements of a duel between two relatively equal contending parties; thus, the role of the judge is limited to a neutral third party. With an interventionist approach, any controversy is a symptom of social unease. Consequently, the case cannot be placed solely in the hands of the litigants; the - adversarial - contest is replaced by a public inquisitorial - inquest overseen by a judge asked to intervene in a dispute that directly or indirectly affects the interests of the whole community. The objective is to restore the legal order and to affirm the collective interest beyond the specific issues raised by the litigants.
The judiciaries The scope of judicial power tends to vary according to the objectives of the process and to reflect the different ideologies underlying the action of public authorities. These same ideologies also affect the judiciary. In fact, true pyramidal systems that entrust higher courts with the task of controlling the work of lower courts are frequently associated with bureaucratic judiciaries, where the hierarchical set-up is an effective device for strengthening the authority of the higher courts. In this way the implementation of state policies can be better assured. Conversely, professional judiciaries with only an embryonic hierarchy are usually associated with systems where the horizontal dimension prevails over the vertical, enhancing the autonomy of the various courts.
The judiciaries However, it is not possible to draw a necessary connection between these elements, since some trial systems combine different principles. But comparative analysis does show that nonadversarial proceedings are more frequently associated with bureaucratic judiciaries where judges careers mirror the courts pyramidal structure, while adversarial arrangements are more frequently found in professional judiciaries operating within co-ordinate structures. (see later lesson five and six) Constitutional review One of the most extensive prerogatives judges can possess is the power of constitutional review (or
judicial review of legislation): to review a law passed by a majoritarian institution, make a binding decision on its conformity to the constitution, and therefore either validate or nullify it. We do not deal now with the question of the democratic legitimacy of this function (Shapiro 2003). However, as Martin Shapiro (2002) has pointed out, scholars generally agree "that there should be some judicial review, but not too much, and then [conduct] a never-ending argument on how much is too much". Constitutional review The relevant point here is that most contemporary democracies have instituted some form of constitutional review and that this power is entrusted to courts.
However, the forms of review, its scope, and operation vary considerably from country to country. Differences also exist in the division of competencies between ordinary courts and constitutional courts where these courts form two distinct court systems (but it is not always the case). Even though the almost universal adoption of constitutional review by democracies in the post-war era has created greater similarities between judicial systems, the timing and context of its introduction vary and help to explain the differences that remain. Constitutional review: America Contemporary constitutional review has its origins in eighteenth century America. Although the US Constitution does
not explicitly grant this power to the Supreme Court (or any other court), a number of favorable conditions have existed to encourage its adoption. These include: a written constitution considered a superior law and endowed with a binding set of fundamental rights that imposes constraints on power; a federal division of powers between the central government and the states in which the judiciary is responsible for resolving jurisdictional disputes; Constitutional review: America a constitutional system of checks and balances premised on suspicion of legislative supremacy and its potential for
creating a tyranny of the majority at the expense of individual freedoms; and a judicial body intended to be a coequal branch of government alongside the executive and legislature. From this perspective, the 1803 Supreme Court decision in Marbury v. Madison, which stated the Courts power of constitutional review, appears to be simply an open acknowledgement of an institutional design that conceived of the Court as the judge not only of citizens but also of the law (http://people.brandeis.edu/~woll/shapirojudofpolitics.pdf ). Constitutional review: continental Europe The development of constitutional review occurred much later in continental Europe. The experiences during the ancien rgime casted a negative light on judicial review
of legislation. Thus, constitutional review was not reestablished until the twentieth century. In 1920 the Austrian Constitutional Court was established, and in the same period the Weimar Republic also introduced a form of judicial control of legislation to ensure consistency with the Fundamental Law. However, it was only after the Second World War that constitutional review began to be adopted more widely in Europe through the establishment of separate constitutional courts. Constitutional review: continental Europe First, Germany created the Bundesverfassungsgericht in 1951, followed by the Italian Corte Costituzionale in 1956. Two years later, the transition to the Fifth Republic in
France (http://scholarship.law.berkeley.edu/cgi/ viewcontent.cgi?article=2384&context= facpubs&sei-redir =1&referer=http%3A%2F%2Fscholar.google.it%2Fsch olar%3Fstart%3D32%26q%3Dconstitutional%2Bautore %3Amartin%2Bautore%3Ashapiro%26hl%3Dit%26as_s dt%3D0%2C5#search=%22constitutional%20autore% 3Amartin%20autore%3Ashapiro%22) brought about the creation of Constitutional review: continental Europe In 1979 Sweden introduced a form of judicial review of legislation that has slowly but increasingly made its impact on that legal system. Spain and Portugal
joined this European trend in 1978 and 1983 respectively, with the creation of Constitutional Tribunals (Tribunal Constitucional). In the transition from communism to democracy in the 1990s, Eastern European countries have created constitutional courts based on a combination of both the American and European models (Stone Sweet 2007). The UK There is no true constitutional review of legislation in the United Kingdom because of the principle of parliamentary supremacy and the lack of a written constitution. However, judicial review does exist in the UK in two respects. First, there is a more limited form of review of government actions, in which courts can rule that a government official or
department has acted beyond the authority granted to it by Parliament (i.e., the power to rule an action ultra vires). This, however, can be remedied by a simple act of Parliament granting the agency or official the power in question; therefore, while it is technically a form of judicial review, it does not constitute the same form of substantive review encompassed by constitutional adjudication. The UK Secondly, the United Kingdoms membership in the European Union and its signing of both the Treaty of Rome and the European Convention of Human Rights (ECHR) have resulted in a diminution of parliamentary supremacy and an extension of power to British judges to rule on the validity of UK laws where European law takes precedence.
In 1998 parliament passed legislation (Human Rights Act) formally incorporating the ECHR into English law, entrusting superior i.e. higher courts - judges to declare legislation incompatible with the ECHR. However, the last word remains to Parliament. The introduction of ECHR interpretation by English courts has generated extensive public debate over the political role of judges as well as the decisions of the European Court of Human Rights (ECtHR). See, for instance, http://www.bbc.co.uk/news/uk-22754866 . Legislative supremacy The late adoption of constitutional review in continental Europe is also related to the constitutional arrangements instituted in the wake of the French revolution. The most visible sign of this arrangement is the supremacy of the legislature, which became synonymous with popular sovereignty as suffrage rights were
progressively extended. Unlike the American model, legislative supremacy does not allow for any limitation to the power of the majority, nor can it accept a higher law intended as a set of positive rules imposing restrictions on the will of the majority. In this context, written constitutions and inventories of fundamental rights can be seen as non-binding declarations that parliament can amend at its pleasure. Legislative supremacy Thus, popular sovereignty and legislative supremacy have acted as powerful checks on the adoption of external controls over legislation, especially one vested in a judicial body. Beyond this, continental systems have often presumed that the judiciary itself is a power to be checked.
The memory of the abuses committed by the courts of the ancien rgime - strong especially in France - and the general fear of government by judiciary have helped to shape constitutional frameworks based on a rigid separation of powers, rather than on checks and balances. Here, the political center of gravity is located between the legislature and the executive at the expense of the judiciary, which is therefore not a true "third branch". The development of constitutional review: some interpretations Traditionally (Shapiro 2003), the introduction of constitutional review was related to Federalism, since a federal setting requires some institution to police its complex constitutional boundary arrangements. In addition, the supporting role of the common law was
considered. The peculiarly English allegiance to the rule of law, with its emphasis on judicial independence, neutrality and fidelity to law, made citizens ready to vest the enormous power of constitutional review in courts. England was a partial exception because it was not federal and its XVII century revolution had not radically affected the basic institutional continuity of its political institutions. The development of constitutional review The post second world war period has put in doubt this interpretation. The number of democratic countries introducing constitutional review has increased with time. For instance, today, almost all European countries have some form of national constitutional
review, further supported by the role of the Court of Justice of the European Union and the European Court of Human Rights. The development of constitutional review These developments have to be related to the growing importance given to division of powers and rights review, in other words to the general process of judicialization of politics. The legacy of the non- democratic past characterized by power concentration and rights violations has pushed toward the introduction of strong forms of constitutional review also in non-federal and non-Englishspeaking countries. Therefore, especially during a transition from a non democratic regime, the institution of constitutional review can be interpreted as a way, for political actors, to get insurance
against future rights-abusing majorities (see lesson seven). The process of constitutional review To shed light on the relationship between courts and politics in a given system, the place of these courts in the broader judicial system, the functions they perform, and the implications of their judgments must be considered. The first element to take into account is the institutional locus of constitutional adjudication: centralized or diffuse review. While centralized review is entrusted to a single separate court, diffuse review is spread across the entire judicial system so that every court has the power to declare a law unconstitutional (e.g. Europe vs. USA).
The process of constitutional review The second element to be considered is the point at which constitutional adjudication can be initiated; this element is a good indicator of the role assigned to the legislature. The intervention of a constitutional court or judge may be invoked either before or after the enactment of a law. A priori review implies that, once promulgated, the law cannot be challenged, and it can be amended or revoked only by the legislature itself. By contrast, a posteriori review allows always the intervention of the constitutional court to protect constitutional rights against their alleged violation by a validly enacted law. Obviously, constitutional courts with a posteriori review have greater scope for intervening in the political process.
The process of constitutional review It is not enough to consider the potential scope of constitutional review. Two further aspects need to be considered: the actors allowed to initiate constitutional litigation and the instruments available to them. The widest form of access allows any citizen to go to the Constitutional Court to ensure the protection of a fundamental right against an alleged encroachment by a public agency. A second channel of access is equally open to all citizens, but only on the condition that they are involved in a dispute. Through incidental proceedings, litigants have the chance to challenge the constitutionality of the law applied in their case: an ordinary court must assess whether constitutional grounds exist to refer the case to
the constitutional court. The process of constitutional review In this way, ordinary courts represent a necessary filter between the litigants and constitutional adjudication. In addition, ordinary courts may raise constitutional issues on their own volition in the course of a particular case. Consequently, with this approach, the ordinary judiciary becomes an unavoidable part of the process of constitutional review, even though this function is concentrated in a separate specialized court. Incidental proceedings are an example of what is termed concrete review of legislation, since it is triggered by the application of law in
individual disputes. On the other hand, abstract review is performed without reference to concrete cases, as a rule only under the challenge by some public authority. It is therefore more resembling to legislation. The appointment of constitutional judges Constitutional court judges are invariably appointed or elected by the political branches - the executive and the legislature - and very occasionally the judiciary itself (see table). However, a distinction can be drawn between instances where the selection is made separately by each branch (each choosing a number of judges) and systems that rely on collaboration among the various institutions. The United States provides a prime example of collaboration: the nine Supreme Court justices are appointed through a
procedure that requires a complex process of mediation between the White House and the Senate. The appointment of constitutional judges Separate appointments, found in France, Germany and Italy, can be more easily understood within the rigid separation of powers doctrine that reflects a basic reluctance in continental Europe to overlap or share power. However, regardless of the approach, political parties invariably play a role in the selection of constitutional court judges, which creates an effective channel of communication between constitutional courts and the political class. ( http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1 955&context=ulj&sei-redir=1&referer=http%3A%2F%2Fsc
holar.google.it%2Fscholar%3Fstart%3D20%26q%3Dappoin tment%2Bconstitutional%2Bjudges%2Beurope%26hl%3Dit %26as_sdt%3D0%2C5#search=%22appointment%20cons The appointment of constitutional judges Therefore, although the mandate of judges tends to be longer than that of legislatives or executives, the political branches have the power to determine the composition of the courts: the guardians are mainly chosen by the very institutions they have to guard. This arrangement reflects the checks and balances principle, and it also provides these courts with some political legitimacy in dealing with the problems that arise as a result of the political role they play.
Constitutional courts United States Federal Supreme Court Number of judges 9 Germany Bundesverfassungsgericht France Conseil
Constitutionnel 16 Italy Corte Costituzionale 9 15 Appointing authorities
President and Senate Bundestag (8) Bundesrat (8) Pres. Rep. (3) Pres. Nat. Ass. (3) Pres. Senate (3) Pres. Rep. (5) High Courts (5) Parl. (5) Terms of
appointment Type of judicial review Life 12 years 9 years 9 years Diffuse Centralized
Centralized Centralized no yes no no yes
yes yes yes No Yes (a posteriori) Yes (a priori) Yes (a posteriori) Concrete review:
direct appeal Concrete review: indirect appeal through judiciary Abstract review The implementation of judicial decisions As Alexander Hamilton emphasized, the judiciary is the least dangerous branch, since it has no influence over either the sword or the purse (Federalist n. 78). In fact, judicial decisions always need the collaboration of several actors in order to be faithfully implemented:
Other courts (lower courts; other jurisdictions: e.g. administrative courts) The political branches The implementation of judicial decisions The Public (and the Media) The support structure (see also lesson three) This collaboration cannot be taken for granted. As we are going to see in lesson seven, much depends on the institutional setting of the political system, the relationships among main political actors and the support courts enjoy in public opinion.
References Damaska, M. (1986), The Faces of Justice and state Authority, New Haven, Yale University Press Guarnieri, Carlo and Patrizia Pederzoli (2002), The Power of Judges, Oxford, Oxford University Press Langer M. (2014), The Long Shadow of the Adversarial and Inquisitorial Categories, in M.D. Dubber and T. Hoernle (eds.), Handbook of Criminal Law, Oxford, Oxford University Press Shapiro, M. (2002), The Success of Judicial Review and Democracy, in Shapiro and Stone Sweet, On Law, Politics & Judicialization, Oxford: Oxford UP, pp. 149-183 Shapiro M. (2003), Judicial Review in Developed Democracies, in Democratization, X, n.4, pp. 7-26 Stone Sweet, A. (2007), The Politics of Constitutional Review in France and Europe, in ICON, vol. 5, pp. 69-92 Uran, P. and P. Pasquino (2015), The Guardian of the Turkish Constitution: A Special Court, in "Journal of Politics and Law", 8, pp. 88-97: http://www.ccsenet.org/journal/
index.php/jpl/article/view/46072/26511. 5. Assessing judicial power: the judiciary Judges and their status Because of their decisional powers, judges are obviously the most significant actors of the judicial system. Therefore, any attempt at evaluating judicial power must consider also judges and their status. As we have seen in week two, judges tend to enjoy a specifically protected status in order to strengthen their independence and impartiality. In fact, they enjoy specific guarantees in constitutional and democratic regimes, although even authoritarian countries often
allow some degree of autonomy to their judges. Judges and their status However, also in democratic contexts judicial independence can be implemented in different ways. The most significant elements concern the ways appointments, salary, disciplinary proceedings, and career patterns - i.e. transfers and promotions are organized, with career likely of being the most important variable characterizing the organizational structure of the judiciary. Taken as a whole, these elements can be used to assess the extent of both internal and external judicial independence, and therefore the influence of the institutional setting on judicial behavior.
Types of judiciary Broadly speaking, in contemporary democracies two types of judiciary can be distinguished according to their organizational setting: bureaucratic, to which civil law judiciaries tend to belong, and professional, characteristic of common law judiciaries (Guarnieri 2012). This is obviously an ideal-typical distinction, since concrete cases are more complex, often combining different traits. In general, judiciaries in democratic countries can be placed on a continuum defined at either end by these two types. Traditionally, the French ( http://www.justice.gouv.fr/multilinguisme-12198/english-12200/justi ce-in-france-22126.html ) judiciary has best represented the bureaucratic type, while the English ( https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciar
y/ ) judiciary has most closely reflected the professional type. The bureaucratic judiciary The defining elements of a bureaucratic judiciary include: Selection of judges is made on a technical basis through examinations at a young age, usually immediately after university, with little or no emphasis placed on candidates' previous professional experience. Training takes place primarily within the judiciary. A hierarchy of ranks determines organizational roles. Advancement up the career ladder is competitive, and promotions are granted according to formal criteria combining seniority and merit. Hierarchical superiors have wide discretion in determining merit.
The bureaucratic judiciary Judges are supposed to be capable of performing all organizational roles associated with their rank (for instance, to be able to adjudicate criminal, bankruptcy, family law, and fiscal cases, or to act as a public prosecutor). They are therefore recruited not for a specific position but for a wide set of roles and in the course of their careers will tend to change jobs often (generalism). This makes guarantees of independence more problematic because of the influence hierarchical superiors (or in some cases the government itself) have over these moves. Judicial guarantees of independence tend to be weaker, especially because judges tend to enjoy a lower degree of internal independence.
The professional judiciary On the other hand, in a professional judiciary: Judges are appointed only after having acquired professional legal experience. In some instances, this experience is taken into account in recruitment for specific judicial positions. This experience is usually, but not always, as legal advocates. In the United States, for example, legal academics are often appointed to the federal bench. The professional judiciary There are no formal provisions for advancement, although higher ranking judges (especially in England) often exert some influence in both the initial appointment
process and the promotion of judges from the lower ranks. Judges are recruited for specific positions. Since promotions are not widespread, on the whole, there are much weaker internal controls over judges by their higher-ranking colleagues. Stronger guarantees of both internal and external judicial independence exist. The influence of the organization Both civil and common law judiciaries have checks to ensure that their members pursue institutional goals, but the approaches are different. Since Anglo-American judiciaries tend to employ individuals
with lengthy legal experience outside the judiciary, there is less emphasis on internal controls. In contrast, because continental judges are recruited without significant professional experience, young judges are placed at the bottom of the judicial pyramid, and their organizational socialization is constantly monitored through a career based on moving up a hierarchical ladder. The influence of the organization The organizational set-up also affects the reference group or the audience - of judges: those individuals and groups judges take into account when reaching a decision (Baum 2006). In bureaucratic judiciaries, the reference group lies mainly inside the
judiciary where judges tend to be professionally socialized. The hierarchical structure enables senior judges to influence the behavior of lower-ranking judges, since they control promotions, transfers, and discipline. In professional or common law judiciaries a similar type of hierarchy does not exist, and reference groups tend to lie outside the judiciary. However, there is a difference between the English judiciary, which traditionally had a small professional reference group (the Bar), and the American judiciary, which has a much more diverse composition and a recruitment process that incorporates different types of professional and political influences. International influences Since 1990, the influence of the international environment has been especially significant in the field of judicial
independence (as well as in other areas of the administration of justice). Jurists view the independence of courts and judges as indispensable elements of the right to a fair trial, which they consider an essential component of the Rule of Law ( http://worldjusticeproject.org/what-rule-law ) that is guaranteed by the most important universal and regional conventions regarding civil and political rights. The jurisprudence of the supervisory bodies set up under these conventions like the ECtHR - has had a significant impact on the setting of national judiciaries (Canivet, Andenas and Fairgrieve 2006). International influences Also a range of other instruments, although technically
non-binding, have been widely endorsed and have influenced in a softer but no less effective way the strengthening of judicial guarantees of independence. In the last 25 years, the United Nations and the Council of Europe have been the most active in this field. Principle two of the 1985 Basic Principles on the Independence of the Judiciary of the United Nations states in a sweeping way that "the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason". International influences One can find similar provisions in the recent 2010
Recommendation by the Committee of Ministers of the Council of Europe on "judges: independence, efficiency and responsibilities".  See http://www.unrol.org/doc.aspx?d=2248 . Endorsed by UN General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.  See Recommendation CM/Rec(2010)12: https://wcd.coe.int/wcd/ViewDoc.jsp?id =1707137&Site=CM. International influences Also powerful international organization - like the World Bank - have supported this effort, by sponsoring projects aiming at introducing or strengthening the Rule of Law (
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EX TLAWJUSTINST/0,,contentMDK:20763583~menuPK:1989 584~pagePK:210058~piPK:210062~theSitePK:1974062 ,00.html ). International influences have constantly brought about a strengthening of judicial guarantees of independence as well as an enlargement of judges' powers and jurisdiction. This trend has been stronger in some areas - like Europe or Latin America - but has more or less involved also several developing countries. Recent and not-so-recent changes Therefore, since the middle of the XX century,
significant changes have characterized the judiciaries in several countries. In England, in 2006, the institution of a Judicial Appointing Commission an independent body in charge of proposing appointments to the Lord Chancellor has circumscribed the traditional powers of the executive: http://jac.judiciary.gov.uk/ Recent and not-so-recent changes However, the most important change has been the creation of councils for the judiciary or judicial councils in several civil law countries, since it has considerably increased the political significance of the judiciary.
Judicial councils are collegiate bodiescomposed of judges and lay membersin charge of administering the status of judges. Their impact has been a more or less radical alteration of bureaucratic judiciaries by strengthening judicial independence and, at the same time, fostering new connections with the political system. In this process the powers and composition of these bodies are critical factors. The more extensive their functions, the stronger their role will be and judicial independence will be stronger with a higher ratio of members chosen directly by and from the judiciary. Recent and not-so-recent changes The European Network of Councils for the Judiciary unites the councils of the Member states of the European Union :
http://www.encj.eu/ The Council of Europe has supported these developments. An active role inside the Council has been played by the Consultative Council of European Judges: http://www.coe.int/t/DGHL/cooperation/ccje/default_en.asp These changes have affected mainly Latin countries (see table below). Germany and Scandinavian countries tend to remain faithful to the traditional civil law setting (Guarnieri 2012). The changes in East and Central European countries will be considered later, in week ten. Judicial councils in Latin Europe Judges
Lay Members France Conseil superieur de la magistrature 8 : president of the cassation, 5 judges and 1 prosecutor elected and a councillor of State Spain
Consejo general del poder judicial 13 : president of the Supreme Court, 12 judges elected by Parliament Portugal Conselho superior da magistradura 8 : president
of the Supreme Court, 7 judges elected 7 : 2 each appointed by pres. of the Rep, of Senate, National Assembly and a lawyer 8 : lawyers elected by
Parliament 9 : 7 lawyers elected by Parliament, 2 (usually one judge) appointed by pres. of the Rep. Italy Consiglio superiore della magistratura
18 : president and chief prosecutor of the cassation, 12 judges and 4 prosecutors elected 9 : president of the Republic, 8 lawyers elected by Parliament The impact of judicial
councils One of the main consequences of creating judicial councils is to increase the external independence of the judiciary by decreasing the traditional power of the executive. But since no judicial council is composed solely of judges, an important role remains for the institution in charge of appointing the non-judicial members. This is usually assigned to parliament, which allows political parties to bypass the executive (i.e. the minister of justice) and influence the judiciary directly. The impact of judicial councils The creation of a judicial council also has consequences for the
internal independence of the judiciary. Entrusting promotion and appointment of judges to a collegial body where normally all judicial ranks are represented contradicts the traditional hierarchical principle, whereby only higher-ranking judges are entitled to evaluate lower-ranking colleagues. In this way, the lower ranks acquire a new power, since they can participate in the process of choosing higher-ranking judges. As a result, challenges to the very idea of a judicial career by the lower ranks have often been successful. It is not coincidental that in countries with powerful and broadly-participated judicial councils - like Italy - the number of judicial ranks has been reduced, and the influence of senior judges assessments of lowerranking judges seems declining. Changes inside the judiciary
The erosion of hierarchical links is particularly relevant to the general expansion of judicial power. With the creation of judicial councils, the reference group of judges has become more varied. Traditional members of the reference group, such as legal academics and senior judges, have decreased in importance, since they no longer enjoy a monopoly over evaluations for judicial promotion. Changes inside the judiciary Thus, the criteria of professionalism of the judiciary have also begun to shift: technical legal knowledge (and ideological conformity) is no longer the determinative element in promotions. Views of others outside the judicial system (for example, political parties in parliament and also unions and interest groups) have
gained in importance. Similarly, the interests of the media and the judiciary increasingly overlap, as judicial actions provide the media with significant news. In return, the media are able to support and publicize the actions of judges (and prosecutors). Freed from hierarchical supervision, in some cases - e.g. France, Italy, Spain - judges and prosecutors have become true media stars (Guarnieri 2015). Changes inside the judiciary Since the council is composed also of political appointees, also their point of view has to be taken into account. In fact, as judicial actions gain political significance, the council may become the main institution where the judiciarys elected representatives can meet political representatives. The institution of judicial councils have also increased the
role of judicial associations, since they often organize the electoral participation of judges. Especially in Latin European countries - where judicial councils tend to be elected by all judges - several organized groups of judges have emerged, often supporting different programs of judicial policy. Changes inside the judiciary As the experience of Latin European countries suggests, the creation of judicial councils is capable of producing a radical change in the judiciarys traditional setting; this in turn can diversify the judiciarys reference group which is becoming more horizontal and, at least in part, placed outside the judiciary. As a result, more activist conceptions of judicial role tend to prevail. See, for instance, the policies advocated by the
most important network of progressive European judges: http://www.medelnet.eu/index.php?lang=en . The status of public prosecutors The expansion of judicial guarantees of independence has involved also public prosecutors. This process has been stronger in those countries in which judges and prosecutors form a single professional group and where the guarantees of judges are stronger. In Italy, prosecutors enjoy the same guarantees as judges and, together with judges, elect two thirds of the members of the judicial council. Their autonomy is extremely high: the executive cannot in any way issue instructions to them. Also in France, where the minister of justice has been able, at least so far, to keep most of its traditional powers, the autonomy of public
prosecutors is growing and the executive has often not been able to exert on public prosecution all its institutional powers. The status of public prosecutors One can trace similar developments in Spain, where a prosecutor general, appointed by the government to head public prosecution, has to confront the growing autonomy of an increasingly unionized corps. As for Portugal, its setting most resembles Italy. Although public prosecutors are separately organized from judges, they enjoy a high degree of autonomy, since all decisions regarding their status are entrusted to a high council where prosecutors are in the majority. Also these developments have been especially supported by the
Council of Europe: http://assembly.coe.int/main.asp?link=/documents/adoptedtext/ta03/ erec1604.htm . Inside the Council the Consultative Council of European Prosecutors has played an important role: http://www.coe.int/t/DGHL/cooperation/ccpe/default_en.asp Summing up: civil vs. common law Civil law, bureaucratic judiciaries tend to recruit their members earlier and to socialize them mostly inside the corps, often in specialized institutions Judicial guarantees of independence tend to be lower in civil law countries e.g. Germany where the traditional, bureaucratic setting has been preserved
However, in several civil law countries judicial independence has been increased thanks to a new institution: the Council of the judiciary Summing up: civil vs. common law Both types of judiciaries allow some kind of political influence to be exerted: the common law thanks to the recruitment process, the civil law thanks to influence on the judicial career. Traditionally, American judges were characterized by stronger activism. However, in some civil law recent reforms countries have supported the development of forms of judicial activism. Now we move to consider in more detail different
conceptions of the judicial role. References Baum, L. (2006), Judges and Their Audiences, Princeton, Princeton University Press. ( http://press.princeton.edu/chapters/s8323.html ) Bell, John (2006). Judiciaries within Europe. A Comparative Review. Cambridge: Cambridge University Press: http://books.google.co.uk/books?hl=it&lr=&id=Hw47iqneTnIC& oi=fnd&pg=PA1&dq=+europe+autore:john+autore:bell&ots= WRb2__rJDx&sig=IFvg8JoXyKbZ5bsSi3XvK92g-t8&redir_esc=y #v=onepage&q&f=false . Dallara, C. (2014), Democracy and Judicial Reforms in South-East Europe, Berlin, Springer.
Dallara, C. (2016), Ten Years of EU-driven Judicial Reform in Southeastern Europe, in Southeastern Europe, XL, n. 4 References Di Federico, Giuseppe (ed.) (2005). Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe. Bologna: IRSIG-CNR: http://www.difederico-giustizia.it/wp-content/uploads/2010/09/recruitment-ev aluation-and-career.pdf . Guarnieri, Carlo. Judges, their careers, and independence, in D. S. Clark (acd), Comparative Law and Society, Cheltenham, Elgar, 2012, pp. 193215: http://books.google.co.uk/books?hl=it&lr=&id=q3vK0g2jOAQC&oi=fnd&pg= PR1&dq=+comparative+law+society+autore:david+autore:clark&ots=5ZAS S0Tn6V&sig=WluE3TCTjuFoXM6NmTa_KSDIjEY&redir_esc=y#v=onepage&q &f=false
. Guarnieri, C. (2015), Justice and Politics, in G. Mazzoleni (acd), The International Encyclopedia of Political Communication, Hoboken N.J., Wiley, 2015, pp. 604-608. Guarnieri, Carlo and Patrizia Pederzoli (2002). The Power of Judges. Oxford: Oxford University Press. 6. Models of judicial decisionmaking Judicial decision-making We have seen in previous lessons (especially in week one and two) that, in order to legitimize their role, judges have to justify their decisions on the basis of the law. Although it is not always easy to say exactly what the law is, legality is one of the basic sources of judicial
legitimacy or, better, or the legitimacy of judicial power in a democracy. For instance, if independent judges are deciding cases only based on democratically enacted legal norms, they are carrying out the will of the people in specific cases. They do not really enjoy any autonomous political power. Judicial decision-making Therefore, in order to consider the sources of judicial power and of its expansion, we have first to deal with the way judicial decisions are taken. More precisely: are they only the by-product of previous positive, written legal norms? Or does the judge intervene in a significant and
autonomous way? In other words, do judges count for the final content of their decisions? Judicial decision-making Are they creative, in the sense that they do not adjudicate only on the basis of pre-existing substantive laws but, at least to some extent, create norms (Cappelletti 1989)? Or have they to be considered a machine, i.e. a sort of slot-machine (Frank 1973), into which you can just insert the facts of the case and easily get the right answer? This last image is, without doubt, simplistic, but there are basically different conceptions of the relationships between the judge and the law, whatever this last is actually defined. It goes without saying that, if you conceive the judge as a
simple law-applier, in order to consider judicial power, you have to consider above all - if not only - the law. If not, the analysis becomes more complex since also other elements have to be taken into account. Legal and non-legal models Broadly speaking, we can therefore distinguish between: Legal models. According to these conceptions of the role of the judge, judges adjudicate only - or mainly - on the basis of the law. Therefore, the analysis must focus on the law, i.e. the legal texts and their more or less "correct" interpretation. Other considerations - of economic, social or political nature - are not significant. It goes without saying that these models tend to present a strong normative - i.e. prescriptive - content: judges must behave in this way (in order to correctly fill the role entrusted to them by the legal and judicial systems);
Non-legal models. According to these conceptions, judges decide, taking into account also considerations other than the law. Here nonlegal elements are obviously significant: for instance, their general political and cultural attitudes. In some cases, it is maintained that judges are actually shrewd actors, rationally calculating the best way to achieve their goals. Legal models: the executor The view of the judge as a faithful and passive executor of the legislative will has traditionally been very influential. It is the source of the idea that a judge is only "la bouche qui prononce les paroles de la loi" (the mouth pronouncing the words of the law), according to the well-known definition put forward in the XVIII century by Montesquieu (The Spirit of Laws, book 11, chapter 6: http://oll.libertyfund.org/titles/837).
Until recently, this view has been dominant in civil law countries, supported by academic doctrine and widely accepted in the political culture (Merryman and Perdomo 2007). Legal models: the executor It developed in conjunction with the institutional transformations of the French Revolution, Napoleonic reforms (see art. 5 of his Civil Code: http://www.napoleon-series.org/research/government/code/book 1/c_preliminary.html ), and the broadening of political participation. It addressed the potential problem of independent judges opposing a legislature that increasingly represented the whole community and, therefore, had stronger grounds for claiming to be the
"true" representative of the popular will. In common law countries, especially in England (see Blackstone), similarities exist with the "declarative theory of law", where the judge is bound to declare the law, free of any elements of creativity, since the task is simply to enunciate legal norms, customs, or judicial precedents. Can the judge be really an executor? However, in the countries of the common law tradition the judge has the duty of respecting judicial precedents - according to the so-called principle of stare decisis ( http://www.britannica.com/EBchecked/topic/563604/stare-decisis ), which implies that judicial decisions have some normative power and therefore that judges enjoy a certain degree of judicial creativity.
This fact has limited the influence of the declaratory theory in favor of a more complex, although functionally equivalent, conception. Thus, judicial creativity is taken as inevitable, although it is maintained that it must be exercised according to the dominant values of the community. According to this approach, when judges confront ambiguities in the legal system, their judicial decisions must be keeping with societys aspirations. Can the judge be really an executor? In fact, the main weakness of considering the judge only an executor lies in the lack of realism of this conception. It is impossible to assume that the legal system is capable of anticipating every type of human activity and providing a solution to all problems that can arise without some "creative" intervention
on the part of the judge. Moreover, legal norms are not independent from the process of interpretation of legal texts : they do not pre-date interpretation but assume meaning through the very process of interpretation, a process in which the judge obviously plays a crucial part. Therefore, at least in principle, the executory conception of the judicial role cannot be considered a realistic description of judicial behavior. Can the judge be really an executor? However, it is also true that, in a specific context, the executor conception can resemble reality and produce what can be defined as the "political sterilization" of the judiciary. This context includes:
a relatively stable socio-economic environment; a state that defines its tasks in a very narrow way and therefore limits the scope of its interventions; a stable legal system with mechanisms (such as the codification of the law) that foster completeness, coherence, and clarity of legal norms; Can the judge be really an executor? a judiciary organized along bureaucratic, hierarchical lines, with senior judges close to the social and political environment and able to influence the decisions of other judges and to make them more homogeneous. These elements are increasingly difficult to find in many contemporary democracies. So, despite the fact that
the executor concept has the advantage of easily reconciling judicial independence with democracy (since the judge cannot help but apply the law and therefore the popular will to concrete cases without any significant autonomous intervention on her part), it less and less reflects the contemporary relationship between courts and politics. The judge as guardian The traditional definition of the judge as an executor was functional to her substantial subordination to the will of the political branches: above all, the legislature. Today, a partly different conception of the judicial role has gained increasing strength, suggesting that, in a constitutional democracy, the judge may or even must oppose the prevailing attitudes of representative institutions in
order to fulfill the judges role of guaranteeing citizens rights. This can be termed the guardian judge and can be found particularly in countries where courts have the power of constitutional review and where the main task of the judge is to defend individual or minority rights from abuses by the political branches and the majorities controlling them. The guardian Also in this case judicial creativity can be denied; for example, by describing constitutional review as only passively "applying" constitutional norms and only opposing the political branches on this basis. However, defining constitutional interpretation in executory terms is even more difficult, from a descriptive point of view, than in the case of simple legislative norms. Constitutional norms, exactly because they are the basic norms of
the political regime, tend to incorporate references to values and can therefore be less easily interpreted in a consistent way (Cappelletti 1989). In any case, recognizing the political autonomy of judges will necessarily increase the significance of their policy-making activity and therefore the problem of their democratic legitimacy. Non-legal models: the delegate Another conception of the judicial role takes into account the critiques of the mechanistic theory of interpretation and recognizes some degree of judicial creativity. Viewing the judge as a delegate takes for granted that
the judge cannot help but make some law, but it is argued that judicial creativity is - or must be - exercised in a manner that is subordinate to the political branches. In other words, it is an "interstitial" creativity developing only within the space left open by the political branches. The delegate The judge, therefore, can insert her evaluations when interpreting vague or unclear texts in legislation or policy fields that have not been subject to legislation, but only until representative institutions decide to intervene. It can be supposed that here the judge acts on the basis of norms that have received explicit or implicit consent from the political community. Thus, judicial creativity cannot be considered
to contradict the democratic principle. The delegate judge is clearly a more realistic definition than the executor. It is particularly prevalent in common law countries, especially England, but also in America it has been argued that judges act in a manner very close to this conception, even though American judges are usually considered the most interventionist and inspired by an activist or political conception of the judicial role. Non-legal models: a political judge? As often pointed out, the modern theory of legal interpretation emphasizes judicial creativity: judges always create norms, since they cannot be completely constrained by previous legal norms.
Therefore, they have to be considered, at least to some extent, political actors, since they enjoy some amount of discretion in making their decisions, whose impact on the political system cannot be disregarded. At this point, the problem to be investigated becomes the nonlegal elements influencing judicial decisions. A first answer, very popular in American political science at least since the middle of the XX century, is the so-called attitudinal model. Non-legal models: the role of attitudes The basic argument of this model is that judges decide according to their preferences. In the terms used in rational choice analysis, judges of pure attitudinal models act sincerely (or naively) rather than strategically. Devoted to good policy as a goal, attitudinal judges act directly on
their policy preferences without calculating the consequences of their choices. They cast votes and write opinions that more or less perfectly reflect their own views, regardless of what their court colleagues and other policymakers might do in response. For instance, according to this model a judges vote on an issue involving freedom of speech reflects solely what the judge thinks is good policy on the issue in question. The attitudinal model: limits Some limits of the attitudinal model have to be emphasized. In practice, the analysis of judges attitudes allows us to spot broader trends rather specific decisions, especially in collegial decisions taken with a tiny majority, where idiosyncratic factors can play a part. In fact, no judge is completely
coherent in her views and often personal likes and dislikes matter. The attitudinal model: limits In addition, it has been pointed out that judges are not completely free to follow their policy preferences. Some type of normative considerations must always be taken into account. For instance, since impartiality is an expected behavior of judges, they will tend to avoid openly partisan stances (at least most of times!). In any case, judges will always try to find normative justifications for their decisions. Thus, while activist judges are more likely to be concerned with the social consequences of their actions, because activists are seeking to maximize justice (be it a conservative or liberal version of justice),
others, more concerned with the need of safeguarding their image of impartiality, will emphasize self-restraint and legality. The institutional setting In order to understand its capacity of explaining the role of judges, the attitudinal model has to be related to the institutional setting, for instance the appointment mechanisms. In fact, appointments influence prevailing judicial attitudes: very often - in practice, with rare exceptions - supreme or constitutional courts judges are selected because of their general political attitudes. The institutional setting
Moreover, by influencing professional socialization, recruitment procedures tend to influence role conceptions: e.g. the prevailing of activism or self-restraint. It is clear that a judge, recruited through technical examinations and having spent all her or his career inside a bureaucratic judiciary, will exhibit, ceteris paribus, more self-restraint than a judge appointed by the political branches after having filled a series of governmental and political positions. However, the usefulness of the model depends also on the context in which judges act: strongly independent judges can more easily follow their attitudes, without fear of retaliation. But considering the institutional context implies introducing in the analysis the strategic dimension. The strategic model
Strategic judges consider the effects of their choices on collective outcomes, both in their own court and in the broader judicial and policy arenas. In other words, they do not simply do the right thing as they see it, such as voting for the most desirable policy on freedom of speech. Rather, they seek to have the right thing triumph in their courts decision and, more important, in public policy as a whole. For this reason, whenever strategic judges choose among alternative courses of action, they think ahead to the prospective consequences and choose the course that does most to advance their goals in the long term. (Baum 2006, 6) Therefore, strategic judges decide insincerely: when confronted with the choice between different decisions, they do not necessarily follow only their attitudes.
The strategic judge The strategic judge takes into account the behavior of other actors who can affect the outcome. For instance, in a collegial court the strategic judge will consider the attitudes of other judges, in order to be able to build a majority for the decisions she or he likes most (or dislike less). In addition, the extent to which judicial decisions can be implemented must be taken into account. Therefore, the judge will consider the state of inter-institutional relations - i.e. the attitudes of the other branches and their capacity of obstructing unwelcome judicial decisions. Here, the general configuration of state institutions matter. The strategic judge Above all, as already emphasized, strategic judges will be
influenced by the actual degree of independence they enjoy. It is clear that strongly independent judges, being better protected from harassment, will be freer to follow their attitudes. But no judge can completely disregard the political and social environment in which she or he is deciding. Therefore, the way the political context can influence judicial behavior must also be taken into consideration: it will be done in week seven. Judicial power and democracy The judicialization of politics has given new life to the traditional debate on the democratic legitimacy of an independent judiciary. The expansion of judicial power
can undoubtedly be considered a positive development, since it can reinforce the protection of individual rights and to some extent the responsibility of public actors. Nevertheless, the most fundamental question it raises is: can such an expansion take place without altering the equilibrium of the political system and, above all, does it conflict with the two key principles of constitutional democracy: the protection of citizens' rights and popular sovereignty? Judicial power and democracy In fact, the increasing role of independent judges in the policy process has been often criticized (Hirschl 2008). It has been argued that, to the extent that which judges cannot any longer be considered constrained by law, an
unaccountable policy-maker seems to emerge, while accountability is one of the pillars of a democratic polity. Therefore, it can be argued that, in order to be compatible with democratic ideals, the independence of judges must allow for forms of democratic responsibility. It is clear that this discussion is conditioned by the type of role conception judges tend to adopt. Judicial power and democracy: the guardians In fact, as we have seen, this criticism is confronted by a different interpretation of the role of the judge, according to which in a constitutional state judges are bound to follow the higher law, i.e. the Constitution rather than statutes.
Therefore, the role entrusted to them implies that they should, at least in some cases, rule against the will of the so-called "political branches": the executive and the legislative. Judicial power and democracy: the guardians Moreover, in performing their role - it has also been argued (Dworkin 1978) - judges have really no discretion, since there is always one right answer to the case they have to decide, an answer which is dictated by the law. Although influential, this conception does not seem to correspond to reality. As we have often remarked, some amount of discretion seems to be an unavoidable - and
growing, for the above-mentioned reasons - trait of judicial decision-making. So, especially in contemporary democracies, political power results inevitably from increased judicial prerogatives and independence. The democratic roots of judicial power However, the expansion of judicial power - a fact has to be ascribed also to specific decisions, taken by democratically responsible bodies: for instance, as we have seen in lesson four, when they decide to introduce constitutional review or a Bill of Rights. Thus, the fact that judicial decisions can go against the will of political majorities i.e. the expansion of judicial power - is inherent in the institutional template
of constitutionalism: it seems to be an inevitable price to pay (Shapiro 2003). The democratic roots of judicial power In any case, it seems unlikely that the judiciary will remain for long out of step from the political branches. As long as courts become politically significant, politicians become interested in exerting influence on them through judicial appointments especially to highest courts jurisdictional reforms for instance, removing politically significant cases from courts or by influencing judicial careers - through the powers of the ministry of justice or of a politically influenced judicial council.
However, if - in the long term - political influence on judges is likely to succeed, on the short run the political role of the judiciary has become and it is likely to remain significant (Dahl 1957). On the democratic role of courts However, also among those recognizing the power of courts, different positions remain on the way this power should be exerted. For instance, some e.g. former Supreme Court Justice Scalia emphasize the need to minimize the interventions of courts in the political process and, in any case, for judges to remain faithful to the texts and their original meaning. They should exert self-restraint. Others think that the power of courts should be devoted to ensure the smooth functioning of the judicial process, for instance by overseeing the fairness of the political process. Independent judges must be the guardian of the democratic nature of the political system by checking
the way political representatives are chosen and also by guaranteeing the rights of political minorities (Guarnieri and Pederzoli 2002). The role of the legal setting In any case, although judicial decisions cannot be considered simply as the by-product of previously enacted legal norms, law matters and its role cannot be disregarded. It is not only that, being positive law the by-product of political majorities, it communicates political currents: so, judges learn where they can find support or opposition for their decisions. Even more important, law can make courts initiatives more or less easy, by changing the institutional setting in which judges operate. As already pointed out, the introduction of bill of rights and of constitutional review, the broadening of courts access, the reinforcement of judicial independence are all
changes brought about by law supporting the expansion of judicial power. Structural setting and role conceptions The prevailing in a judiciary of specific role conceptions depends also on its institutional and organizational setting The traditional setting of civil law countries was supporting the congruence between the bureaucratic structure and the role conception of the executor judge On the other hand, in the US the influence of politics in the recruitment has brought about a propensity toward activist conceptions The institutional and organizational reforms in Continental Europe have altered the traditional setting:
Organizational setting and role conceptions The strengthening of judicial independence and the creation of judicial councils The institution of judicial schools The development of electoral competition (for instance, for the judicial elections) and of judicial associations All these changes have supported the emergence of pluralism and of activist conceptions A different case: Germany? References Baum, L. (2006), Judges and their Audiences: A Perspective on Judicial Behavior, Princeton, Princeton
UP. (http://press.princeton.edu/chapters/s8323.html ) Cappelletti, Mauro (1989), The Judicial Process in Comparative Perspective, Oxford, Clarendon Press. Gibson J. (1983) From Simplicity to Complexity: http://link.springer.com/content/pdf/10.1007%2FBF0098998 5.pdf . Frank, Jerome (1973), Courts on Trial, Princeton: Princeton University Press: http://books.google.it/books?hl=it&lr=&id=UJgmr316SVoC& oi=fnd&pg=PR7&dq=autore:jerome+autore:frank&ots=reQ References Guarnieri, Carlo (2012), Judges, their careers, and independence, in D. S. Clark (acd), Comparative Law and
Society, Cheltenham, Elgar, 2012, pp. 193-215. ( http://books.google.co.uk/books?hl=it&lr=&id=q3vK0g2jOAQC &oi=fnd&pg=PR1&dq=+comparative+law+society+autore:da vid+autore:clark&ots=5ZASS0Tn6V&sig=WluE3TCTjuFoXM6N mTa_KSDIjEY&redir_esc=y#v=onepage&q&f=false ) Hirschl R. (2008), The Judicialization of Politics, in K.E. Wittington et al. (eds.), The Oxford Handbook of Law and Politics, Oxford UP, pp. 119141. Merryman, John and Rogelio Perez Perdomo (2007). The Civil Law Tradition. Stanford: Stanford University Press: http://books.google.co.uk/books?hl=it&lr=&id=Z9B8GaU2BqoC &oi=fnd&pg=PR11&dq=autore:merryman+autore:perdomo&ot 7. Theories of judicial power
The support by elites As we have seen, the expansion of judicial power has been supported by institutional innovations - for instance, innovations increasing the political significance of courts and strengthening judicial independence - often brought about by political majorities. However, although popular majorities and also public opinion, as we are going to see later in this week - can play a role in this process, the role of political elites is crucial in carrying out reforms designed to strengthen judicial power. The support by elites
Political elites can be assumed to know, at least in broader terms, the consequences and the implications of institutional changes. Therefore, why they decide to behave in this way, since at the end their power is likely to come out reduced? Since we can suppose with some confidence that elites will behave as rational actors, when they decide to support institutional changes expanding judicial power, it is very likely that they intend (at least most of the time) to support also their interests. Credible commitments A first explanation of elites behavior emphasizes their need to make more? - credible their commitments. A strong and independent judiciary signals politicians
commitment to a policy (not only to national audiences, but also to foreign investors or other significant actors: for instance, the European Union). Especially in developing countries, an independent judiciary can play a reassuring role for foreign investors, often worried of possible governmental interference. Credible commitments It is not by chance that institutions like the Word Bank tend to support judicial independence, considered to be an important tool in the building of the Rule of Law ( http://www.worldbank.org/en/topic/governance/brief/justi ce-rights-and-public-safety ) and therefore in protecting the right to property and
supporting economic growth. But the problem here is not only that in weak democracies it is easier for the government to undermine judicial independence. It sometimes difficult to assess the extent to which independent judges will really behave in an independent and impartial way. Blame deflection Another reason in favor of judicial independence is that in this way difficult or unpopular decisions are delegated to (independent, politically non-responsible) courts. This is the so-called strategy of blame avoidance or deflection. There are several prominent example of this strategy. For instance, the case school desegregation ( https://www.loc.gov/collections/civil-rights-history-project/ar
ticles-and-essays/school-segregation-and-integration/ ) in the South of the United States: in a political context in which the Southern states - thanks to their influence on Congress - were in the position to stop any desegregation legislation, the national political elites were happy to entrust the task to the courts. Blame deflection Similar trends can be spotted also in Italy. In a context of serious terrorist activity the Left was ready to support anti-terrorist legislation if a leading role was entrusted to independent magistrates, rather than to policemen, mostly perceived as being of right-wing persuasion. The arrangement was similarly replicated, in the following decade, with organized crime. Many politicians, especially in the South, where organized crime was
able to influence a part of the electors, were happy to see the judiciary to take a prominent role in the investigations. The irony of the Italian cases is that judges were able to apply later the investigation techniques employed against terrorism and organized crime also to the prosecution of political corruption. Political insurance Another important approach has emphasized the insuring role played by independent courts (Ginsburg 2003). It is a role that can emerge especially during the transition to democracy, when a new democratic constitution is going to be drafted. In the context of a transition from non-democratic rule the need of protecting citizens rights and freedom from executive abuses tends to be strongly felt. Actors caring for the democratic future
will further strengthen this attitude, especially when there is a low level of trust among the different political groups and high uncertainty about future electoral outcomes. Political insurance Additional conditions for judicial empowerment are that: no party is able to achieve a predominant position in the transition phase, with the consequences that political decisions tend to be the result of a compromise among different political forces; courts are to be trusted, at least to some extent, a fact more likely to happen in transition from an authoritarian regime. As we are going to see, unlike totalitarian regimes, authoritarianism tends not to directly involve the courts in its policies and to allow them some degree of
autonomy. Alternation to power The influence of political relationships on the expansion of judicial power can be traced also in consolidated democracies. For instance, a comparison between the US and Japan supports the hypothesis that political alternation tends to strengthen judicial power (Ramseyer 1994). In the US, the perspective of being voted out of power in the future induces the party in power to respect judicial independence. On the contrary, in Japan where the same party tends to control the government and is expected to do so also in the future judicial independence seems to be decisively lower.
Alternation to power However, much will depend on the way the courts attitudes will be perceived. More precisely: A relative moderation i.e. a sort of centrism - of judicial attitudes will enlarge the support for courts In any case, those believing to be advantaged by judicial decisions will obviously support an expansion of judicial power The same effect is likely to be brought about by the diffusion, inside the judiciary, of formalist, legal conceptions of the judicial role, emphasizing its technical, non political nature. Hegemonic preservation Another similar phenomenon has spotted in several
consolidated democracies (Hirschl: http://mtw160-198.ippl.jhu.edu/journals/good_society /v013/13.3hirschl.pdf). Here, politically and socially influential - that is, hegemonic - groups, when they perceive a coming decline of their power - for instance due to the increasing influence of previously marginal groups - can decide to strengthen the role of independent courts in order to safeguard their interests. Hegemonic preservation This strategy is made possible by the fact that the legal professions are often part of the old establishment. Therefore, hegemonic groups can be rather assured that, by strengthening judicial independence, their interests
will be safeguarded also in the new political setting. However, this strategy, in order to be successful, needs also that courts would enjoy the trust of the public. It is not a coincidence that this strategy has been at least relatively - successful in countries in some way belonging to the common law tradition, where judges usually enjoy a good reputation: Canada, Israel, New Zealand and South Africa. The cost of constraining judges We have analyzed some of the considerations leading to decisions supporting the expansion of judicial power. Now we should reverse our focus and consider how, in democratic regimes, the power of
courts, once established and consolidated, could be constrained. Overall, it seems an unlikely event. In fact, the main elements obstructing the attempts at containing judicial power are: a state of fragmentation of the political system, making difficult to take decisions, especially when aimed at curbing judicial power; a public opinion - an element politicians have always to take into account in a democracy - strongly supportive of the role of judges. Political fragmentation: the institutional dimension A state of political fragmentation can be brought about or in any case supported by the institutional setting of the polity (
http://mtw160-198.ippl.jhu.edu/journals/good_society/v013/13.3hir schl.pdf ). Here the significance of a true separation of powers matters. It can take at least two main forms: At the central level, by strictly separating the political branches, as in a pure presidential system where between the executive and the legislative there is often no institutional relationship. It is clear that, when the two branches are controlled by different and maybe opposing political forces (divided government), it would be difficult to reach an agreement on decisions often involving constitutional changes designed to contain judicial power; Political fragmentation: the institutional dimension
much of the same can be said for a federal structure. We have already emphasized the relationship between constitutional review an arrangement leading to an expansion of judicial power - and federalism. It goes without saying than a federal structure often reflected in the architecture of the central legislative power is likely to affect the decisional effectiveness of a political system. Moreover, in some federal settings the judicial system is split between a federal - national - level and a state level: it is therefore more difficult to implement measures aimed at curbing courts nationwide. Party system fragmentation Another element to take into account is the degree of party system fragmentation, i.e. the number of significant political
parties and their relative strength. In fact, a fragmented party system is likely to lead to coalition governments, whose decisional processes tend to be more difficult. Also in this case an institutional element can play a role: proportional representation is often supporting or in any case not constraining the degree of party fragmentation. Together with party fragmentation, also the state of political polarization is likely to be significant. Policy-distant - and ideologically intense - political actors will encounter difficulties in the way to reach agreements. This is the reason why weak political majorities often characterize polarized political systems. Therefore, also in such situations decisions aiming at constraining judicial power are unlikely. Judicial power and public
opinion Public opinion plays always an important role in a democracy, at least because it can claim to represent, at least to some extent, the mood of the people or, better, of the electorate. Courts enjoying the support of public opinion are better protected by political attempts to curb their power. In this case, politicians can realize that curbing the courts can jeopardize their electoral support and therefore will restrain from carrying out their projects of circumscribing courts' jurisdiction or reducing guarantees of independence. Judicial power and public opinion: cases Two significant examples of these failed attempts are:
President Roosevelt in the USA, in 1937, confronting the Supreme Court. Chancellor Adenauer in Germany, in 1952, confronting the Federal Constitutional Court . In both cases, the executive, being deeply disappointed by some judicial decisions, was trying to reduce the powers of the supreme or constitutional courts and in both cases it failed because of the attitude of public opinion, strongly in favor of the independence and the prerogatives of the highest courts (Vanberg 2005). United States 1937 Throughout the 1930s, president Roosevelt had to contend with a Supreme Court that was consistently striking down central programs of its New Deal.
These programs constituted the core of the president's legislative program and enjoyed widespread public support. After winning reelection in an unprecedented landslide in 1936, Roosevelt decided to confront the Court head on by proposing a plan that would allow him to "pack" the Court with up to six additional justices. The plan met with strong public opposition, which eventually forced Roosevelt to give up the plan. United States 1937 However, in the meanwhile, with a series of spectacular decisions, the Supreme Court reversed its position and began to uphold New Deal programs. Whether the Supreme Court performed this change as
a conscious response to the court-packing plan is debatable. But it seems that public opposition to the plan was significantly linked to the timing of the decisions in which the court performed its about-face (Vanberg 2005, pp. 51-52). Therefore, the episode underscores the complexity of the relationship between courts and politics. Germany 1952 A similar confrontation developed in 1952, in West Germany, between the Adenauer administration and the Federal Constitutional Court (FCC) in connection with the ratification of two international treaties (Vanberg 2005). The first treaty formally ended the occupation of West Germany and restored West
German sovereignty. The second established a panEuropean system of defense, including German forces. The issue raised a strong controversy between the Christian Democratic government, led by Adenauer, and the Social Democratic opposition. Germany 1952 At the certain point, the FCC was called to rule on the constitutionality of the treaties. When Adenauer realized that the Court was likely to rule against the government, decided to take a clear confrontational stand against the Court: it announced its intention to resort to institutional changes, if necessary, to prevent the implementation of a, possible, negative ruling by the Court. Yet, in a couple of weeks, the government completely changed this position, published a unanimous declaration of support for the Court, and abandoned
all attempts to change the institutional structure of the FCC. The most significant explanation for this change was the reaction of the mass media and the perceived threat of a public backlash against the government that this media coverage produced in the administration (Vanberg 2005, p. 73). Courts legitimacy Public opinions support for courts is related to courts legitimacy, that is to diffuse support, support not related to specific decisions. The sources of courts legitimacy are not always clear but the most significant seems to be (Gibson 2007): The so-called positivity bias: that is, the fact of being often exposed to legitimizing symbols; The fact of being aware of the functioning of the legal
and judicial process: for instance, knowing law and courts seems to explain the strong support for courts usually found in lawyers. Courts legitimacy In fact, the role of lawyers in building courts legitimacy seems substantial. As it has been pointed out (Halliday et al. 2007), where the Legal Complex i.e. the whole set of judges, attorneys and academic lawyers is cohesive, judicial independence and power is better protected, since lawyers tend to mobilize in support of judicial independence. It seems more difficult to build legitimacy in polarized societies, where judicial decisions are easily perceived as biased, public opinion being often divided along ideological lines. On the other hand, we have seen that polarized political systems tend to be
fragmented a fact generally supporting the expansion of judicial power. The result can be a state of weak but conflicting powers. Courts and interests Courts cannot for long rule systematically against clear trends in public attitudes and expect to maintain an independent - and powerful - status. Therefore, strategic judges will anticipate the interests of powerful actors - who often can heavily influence public opinion - in specific decisions and accommodate those interests in order not to provoke a direct confrontation (Vanberg 2008). In fact, interests play an obvious role in protecting courts from politicians harassments. By satisfying with their decisions powerful interests, courts can be able to rely on their support when confronting attempts at constraining their power by the political branches. Moreover, even more important, by satisfying powerful
- or even majority interests, courts can gain specific support that, on the long run, can translate itself into diffuse support, i.e. legitimacy. Courts and interests Thus, courts can later employ the reservoir of legitimacy so acquired also to satisfy the demands of minority or weak groups. The evolution of the role of the US Supreme Court is a good example of this phenomenon, as the analysis of the US will show. In general, sensitivity to the interests of powerful actors is especially important during the initial establishment of an independent judiciary, when courts tend to be more in need of support.
Courts and strategic communication In this context, it is evident that judges decision-making - in order to be effective - requires significant political skills. They must be able to combine two potentially conflicting needs: satisfying interests - often of a rather narrow scope - without alienating public opinion. In this effort, the way judicial decisions are presented to the public is crucial in order to achieve its support, a fact emphasizing the significance of strategic communication (Staton 2010). In fact, successful courts are central actors of their empowerment. They tend to act strategically, influencing communication in order to gain legitimacy. Above all, they will try to hide from view particularism - e.g. decisions supporting elites or small groups interests and, on the contrary, to emphasize popular decisions,
those satisfying the expectations of the majority. In any case, they will try to attract the support of the media. The recent development, inside some supreme courts, of specialized structures for dealing with the media seems to testify this trend. Political change, the media and criminal justice As we have pointed out, the growing complexity of contemporary legal systemsenlarging judicial creativityand the stronger judicial autonomy have expanded the domain of adjudication, a trend also supported by changes in the political field (like increased political fragmentation). However, some specific political changes seem to have increased the impact of judicial decisions by fostering stronger relationships with the media. In fact, Pizzorno (1998) has maintained that judicialization is
related to long-term changes in democratic political systems. The traditional programmatic politicsin which parties compete with different policy programshas given way to a kind of moralistic politics, in which the personal attributes of candidates play a major part. Political change, the media and criminal justice In this new situation, the check on candidates moral qualitiesthe so-called controllo di virt (virtue check) cannot any longer be effectively performed by the opposition, often caught up in a web of transactions with the governing parties. Thus, criminal courtsjudges and public prosecutors tend to play a significant part in the political process,
by checking the morality of candidates and triggering the explosion of political scandals. The media and criminal justice The converging interests of the media and prosecuting or investigating magistrates (Garapon and Salas 1996) have further supported these developments. Magistrates throughout their investigations supply the media with significant and newsworthy stories, while the media can reciprocate by supporting judges and prosecutors facing political pressure. This trend has especially emerged in Latin and East Europe, where judicial autonomy has been recently strengthened and opposition parties do not always seem capable to expose the real or perceived - corruption of the governing class. However,
especially lawyers emphasizing the potential damage for citizens rights have criticized this convergence between courts and media as the development of a mediatic-judicial circus (Soulez-Larivire, 1993). Trust in political institutions in the EU IT ES PT FR
DE UK NL SE DK GOV 15 14 33
14 39 34 54 45 43 PAR 19
15 32 18 41 35 54 60 56
JUS 40 43 52 58 67 73
78 84 36 Judicialization: summing up As already pointed out in week one, the recent decades have seen the expanding role played by courts in the political systems. Behind this development lie, first of all, specific institutional changes: especially, the enlarged powers of judges e.g. the introduction of constitutional review - and the strengthening of guarantees of judicial independence. Building on the theoretical insights presented this week, some general explanations of this trend can also be put forward:
a large number of countries have experienced a transition to democratic rule: in these contexts the "insurance theory emphasizes the interests of most significant political actors at expanding judicial power; Judicialization: summing up the pressure by international and supranational institutions toward strengthening Rule of Law institutions has incentivized rulers in "developing" countries to show their "commitment" at building the Rule of Law; moreover, in some consolidated democracies, the prospect for radical political changes has pushed also traditional, "hegemonic" elites to support an expansion of judicial power; Changes in the nature of political competition has exalted to role courts in democracies entrusting them with the task of checking
the virtue of politicians. In the rest of the course we are going to consider in more detail some exemplary cases. References Garapon A. and D. Salas (1996), La Rpublique pnalise, Paris, Hachette. Gibson J. (2007), Judicial Institutions, in The Oxford Handbook of Political Institutions, Oxford, Oxford UP, 514-553. (or: http://link.springer.com/content/pdf/10.1007%2FBF00989985.pdf ) Ginsburg T. (2003), Judicial Review in New Democracies, Cambridge, Cambridge UP. (or: http://works.bepress.com/cgi/viewcontent.cgi?article=1068&context=robert_ cooter ) Halliday T. C., Karpik L., Feeley M.M. (eds.), Fighting for Political
Freedom: Comparative Studies of the Legal Complex and Political Liberalism, Oxford, Hart, 2007 Hirschl R. (2008), The Judicialization of Politics, in K.E. Wittington et al. (eds.), The Oxford Handbook of Law and Politics, Oxford UP, pp. 119141. (or: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138008 ) References Pizzorno A. (1998), Il potere dei giudici, Bari, Laterza. Ramseyer J.M. (1994), The Puzzling (In)dependence of Courts: A Comparative Approach, in Journal of Legal Studies, 23, n.2, pp. 721747. Soulez-Larivire D. (1993), Du cirque mdiatico-judiciaire et des moyens d'en sortir, Paris, Seuil Staton J. K. (2010), Judicial Power and Strategic Communication in Mexico, Cambridge, Cambridge UP. Vanberg G. (2005), The Politics of Constitutional Review in Germany, Cambridge, Cambridge UP.
Vanberg G. (2008), Establishing and Maintaining Judicial Independence, in K.E. Wittington et al. (eds.), The Oxford Handbook of Law and Politics, Oxford, Oxford UP, pp. 99-118.