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The Judicialization of Politics.

A World-Wide Phenomenon: Introduction


Author(s): Torbjrn Vallinder
Source: International Political Science Review / Revue internationale de science politique, Vol.
15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994), pp. 91-
99
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InternationalPolitical ScienceReview (1994), Vol. 15, No. 2, 91-99

The Judicialization of Politics-A World-wide


Phenomenon: Introduction

TORBJORNVALLINDER

Meaning
To judicialize, according to the best of sources, is "to treat judicially, arrive at a
judgement or decision upon." In this connection judicially should mean, either, (1)
in "the way of legal judgement, or in the office or capacity of judge; in, by, or in
relation to, the administration of justice; by legal process; by sentence of a court of
justice," or, (2) after "the manner of a judge; with judicial knowledge and skill"
(OEDVol. vIII, 1989: 297).
Thus, the judicialization of politics should normally mean, either
(1) the expansion of the province qf 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, or, at least,
(2) the spread of judicial decision-making methods outside the judicial province
proper. In summing up we might say that judicialization essentially involves
turning something into a form of judicial process.
In democracies, primarily in their popularly elected assemblies, decision making
is based on the majority principle and a free, public debate among equals. But what
about the courts?
According to standard works on legal procedure, the organization and working
methods of the courts regularly include
- special staff, including judges, normally with legal training
- the resolution of conflicts between different parties in a regular and author-
itative way, according to
- preordained rules, thereby
- ascertaining the facts of the case and weighing the arguments of the conflict-
ing parties, with
- prospective effects on similar cases in the future.
The differences between the judicial and the political ways of conflict resolution
may be further illuminated through a more detailed comparison between a court
and a legislature:
0192-5121 94/02 91-09 ? 1994 International Political Science Association

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92 Introduction

Court Legislature
Actors * two parties and a * several parties
third participant (the
judge)
Working methods * open hearings * bargaining, often
* weighing of arguments behind closed doors
* compromises
* log rolling
Basic decision-making * decision made by an * the majority principle
rule impartial judge
Output * settling of individual * general rules (laws,
cases but cf. budgets), policy-making
precedents, esp.
judicial review
Implications * ascertaining the facts * allocation of values
(what has happened) (often economic),
and the relevant rule "the politically
(what should be possible solution"
applied), "the only
correct solution"
These two decision-making models can perhaps be looked upon as ideal types.
However, the borderline between them is by no means crystal clear. In the judicial
field there are instances of discussion between the parties and the judge behind
closed doors, or plea bargaining, widespread in the United States and practised also
in the United Kingdom and other European countries. It is also quite obvious that
in practice the courts make law through precedents. That activity is especially
important in judicial review of legislative enactments.
It is, nevertheless, quite clear that the two models embody two different princi-
ples, and two corresponding roles, both of which are indispensable in a democracy.
Quoting Herbert Wechsler, we should put "emphasis upon the role of reason and
of principle in the judicial, as distinguished from the legislative or executive,
appraisal of conflicting values" (Wechsler, 1959-60: 16). In this connection, it is the
task of the courts to shelter the fundamental rights of citizens, what we, following
Isaiah Berlin, call "negative" freedom. The legislature, on the other hand, has to
take care of the rights and obligations of the (legislative) majority. The judicial-
ization of politics may roughly be said to signify upgrading the first principle at the
expense of the second.

Forms
Using the definition above of judicialization of politics, it is possible to distinguish
several forms of it. Quite obviously, one major form is judicial review of executive
and legislative actions. In a way, this form would amount to placing the third branch
of government above the first and second ones. However, the basis of judicial review
of legislative action is normally the codified constitution of the country. Since that
document has been enacted by the legislature or, as in the United States, by a
constitutional convention, this form of judicial review should really imply keeping
the legislature within its proper limits as stated in the constitution and, thus,
protecting it from wrongful use of its powers. Somewhat in the same vein, judicial

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TORBJORNVALLINDER 93

review of executive action may often be said to entail enforcing the decisions of the
legislative majority by applying the ultra vires principle to the action in question.
The scope and efficiency of judicial review can be enhanced through the enactment
or the expansion of a bill of rights.
Judicial review may be termed judicialization from without. However, there are
also different forms of judicialization from within-for example, the introduction or
expansion of judicial staff or judicial working methods in the administrative sector.
Here one example can be found in the development within the administrative
tribunals in Britain. Partly following the recommendations of the Franks
Committee of 1957, "a large measure of judicialization has occurred, in part
through the stimulus provided by the Council on Tribunals. Some changes, such as
the duty to give reasons on request, were incorporated in the Tribunals and
Inquiries Act 1958, while others, for example, the opening up of hearings to the
public, have come about either through delegated legislation or administrative
action" (Harlow and Rawlings, 1984: 97).
That means more adjudication, less administration.
A similar example is provided by the American Administrative Procedure Act of
1946 and the way in which us agencies have "administrative judges" who hold
hearings on many decisions, often of no great adjudicatorycharacter (cf. Bell, 1987).
Somewhat different examples of judicialization from within can be found in
Sweden. Owing to traditions going back to the Code of Laws of the Kingdom of
Sweden, enacted in 1734, the similarities in working methods between civil servants,
many of them with law degrees, and the judges are clear and important. It is under-
standable that the English system of separation between the civil service and the
judiciary has never existed in Sweden (cf. Str6mholm, 1981: passim).
Even more striking is another Swedish tradition, with roots going back to the
second half of the nineteenth century. In their earlier lives, many Swedish judges,
on leave from the courts of appeal, work for some years in the ministries as drafters
of government bills or in ministerial commissions as secretaries. Later they go back
to the courts at various levels.

Background
Several of the earliest champions of democracy did not envisage a conflict between
the two principles under discussion here. That very American Englishman, Thomas
Paine, was a typical example. In his book TheRights of Man, published 1791-92, he
stated (in italics) in the chapter "Of Constitutions" that "representative government is
freedom"(Paine, 1976: 222f.). In his mind the only threat to the rights of the citizens
came from the hereditary monarchy and the hereditary nobility and their hench-
men, including corrupt judges.
However, somewhat earlier the American Founding Fathers of 1787 had taken a
more sceptical view towards strict majority rule and were, consequently, much more
interested in the constitutional role of the courts. In The FederalistPapers (No.
LXXVIII) Alexander Hamilton stated that the judiciary is beyond comparison the
weakest of the three departments of power and that "the general liberty of the
people can never be endangered from that quarter." Hamilton continued:
The complete independence of the courts of justice is peculiarly essential in a
limited Constitution. By a limited Constitution I understand one which contains
certain specified exceptions to the legislative authority: such, for instance, as that

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94 Introduction

it shall pass no bills of attainder, no expostfactolaws, and the like. Limitations of


this kind can be preserved in practice no other way than through the medium of
courts of justice, whose duty it must be to declare all acts contraryto the manifest
tenor of the Constitution void. Without this, all the reservations of particular
rights or privileges would amount to nothing (Madison, et al. 1987: 438).

Thus, Hamilton clearly and enthusiastically endorsed the judiciary and judicial
review.
The background and development of judicial review in the United States is a
main theme in Martin Shapiro's contribution in this issue.
During the nineteenth century several European liberals, most notably Benjamin
Constant, Alexis de Tocqueville, and John Stuart Mill, took as sceptical a view as
the American Founding Fathers did of strict majoritarianism and assemblies elected
by universal and equal suffrage. Those three Europeans worked, in the main, along
the same lines. In his classic book Democracyin America (about 1840) Tocqueville
extensively discussed the roles and importance of the American courts, judges, and
juries. One typical sentence runs like this: "Restricted within its limits, the power
granted to American courts to pronounce on the constitutionality of laws is yet one
of the most powerful barriers ever erected against the tyranny of political assem-
blies" (Tocqueville, 1969: 103f.).
Like Tocqueville in his later works, Mill was very much upset by the revolution of
1848 in France and the subsequent return of the popularly backed Napoleonic despo-
tism. In his books On Liberty (1859) and Considerationson RepresentativeGovernment
(1861), indispensable reading for all democrats ever since, Mill reviewed possible
checks to the tyranny of the majority, including the tyranny of public opinion.
However, he had been brought up in the British traditions of parliamentary
supremacy and of utilitarianism, and he accepted in principle Jeremy Bentham's
critical attitude toward lawyers. Thus, Mill had not much, indeed, nothing favourable
to say about judges, not to mention judicial review (cf. Mill, 1989: 68f., fn. 1).
Coming to our own century, we may take Lord Bryce's well-known standard work
ModernDemocraciesas a starting point. It was published in 1921 when the world was
supposed to have been made safe for democracy. It comprises two volumes with
about 1 320 pages in all. The section on the United States, needless to say, contains
a comprehensive treatment of "The judiciary and civil order" (J. Bryce, 1921 Vol.
II: 89-120). Bryce further included a general chapter on "The judiciary," but it is
very short and contains nothing about the constitutional role of the courts (op. cit.
Vol. II: 421-427). There is also a chapter on "Liberty." It, too, is very short and does
not mention the courts or the judges (op. cit. Vol. I: 57-67).
Proceeding to the period after the Second World War, we may safely say that the
role of the courts and the judges has clearly and considerably expanded. A certain
amount ofjudicialization of politics has occurred in many democratic countries. The
precise causes behind these developments, as is amply demonstrated in this issue,
differ from country to country. However, it is certainly possible to point to some
general determinants.
One important factor was the rise in the 1930s of the totalitarian regimes in
Europe and their outrage against the rights of citizens, especially during the war.
After the war, against that background, democrats everywhere, maybe especially in
Germany, had to ask themselves some crucial questions such as, How could all this
have happened? How do we prevent a recurrence of it? In other words: how to
protect the rights of citizens in the future?

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TORBJORNVALLINDER 95

During the first three years of the 1930s the political situation in Germany was
rapidly transformed from a democratic Kulturstaatinto a barbarous dictatorship. In
the general election ofJuly 1932 the Nazis and the Communists together won more
than 50 percent of the seats in the Reichstag.This majority, of course, was not a
working one. Nevertheless, it was an anti-democratic majority emanating from a
democratic election, something unheard of until then.
In January 1933, following a new general election in November 1932, formally
and in good constitutional order, the Nazi leader Adolf Hitler was appointed
Chancellor and he formed a coalition government. The Reichstagwas dissolved, and
a general election, neither fully democratic nor totally rigged, was held in March,
giving the government an absolute majority. After the election, using the notorious
emergency Article (No. 48) in the Constitution, the Reichstag was purged of
Communists, thus securing an absolute majority for the Nazi Party. Then the dicta-
torship was established through a decision of the Reichstag,with only the Social
Democratic Party voting against (see, e.g., Bracher, 1983).
To say that Hitler came to power in a democratic way is, thus, at most a half-
truth. However, even half-truths may be frightening and require counter-measures.
The Federal Republic of Germany took them in 1949: a new Constitution, the
Grundgesetz-including an extensive Bill of Rights, a Constitutional Court, and
judicial review-was enacted. The ensuing development is described in Christine
Landfried's article in this issue.
Another background factor can be found in the economic sector of political life.
During the later war years the leadership groups of political parties in different
countries were planning for economic reconstruction and development in the
approaching peacetime. In the socialist camp, central planning, including an exten-
sive social security system and some measures of nationalization, were considered
instrumental in achieving those goals. According to the tenets of the Labour parties
in, say, Britain and Sweden, the suggested policies would promote not only economic
equality but also political liberty.
In the liberal and conservative camps dissenting opinions were put forward. To
liberals of the classical persuasion central planning was certainly not a way to
freedom and security but TheRoad to Serfdom(Hayek, 1944). They pointed out that
such a planning had been put into practice in the Soviet Union and, to some extent,
in Nazi Germany-with disatrous results.
Representatives of the Labour parties retorted that, in their view, Freedomunder
Planning (Wootton, 1945) was not ony indispensable but also quite attainable.
However, by and large, at least some British Labourites conceded that there was
something valid in the liberal criticism, that there existed a real problem which
could be labelled Socialismand theNew Despotism(Crossman, 1956). In his pamphlet,
R.H.S. Crossman, a well-known member of the political science profession,
discussed the relations between the law and personal freedom:

To restoreParliamentarycontrolof the Executive,however,is not sufficientfor


our Socialistpurposeof liberatingthe communityfrom the abuse of arbitrary
power.The next step will be to reform the Judiciary,so that it can regain its
traditionalfunctionof defendingindividualrights against encroachment.That
functionhas been steadily narrowedfor the last hundredyears, as small-scale
capitalismhas been transformedinto oligopolyand the flimsy structureof the
Victorian State has developed into the Leviathanwhich now dominates our
lives.

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96 Introduction

Thus, Crossman insisted that the Labour Party should "go on to discuss the
reforms of the law and the reorganization of the Judiciary which will be required
to defend the individual against the oligopolists and oligarchs who threaten his
freedom" (Crossman, 1956: 19f.).
The British Constitution does not lend itself to a judicialization of politics.
However, as Maurice Sunkin shows in his contribution to this issue, judicialization
has occurred in the United Kingdom and is likely to become more important in the
future.
The French judicial tradition is clearly a mixed one. As Jacqueline Lucienne
Lafon points out in her contribution to the present collection, France is both the
country of Montesquieu-who may be called the godfather of the judicialization of
politics-and, since the Great Revolution of 1789, the country of strict separation
of powers, meaning here that the courts, when interpreting the law, should act very
carefully. France remains the country of Montesquieu, but on the second score it
has changed since the Revolution, especially during recent decades.
The smaller European countries, in this issue represented by the Netherlands
and Sweden, have through the centuries been strongly influenced by developments
in the great powers in recent years, not least the United States. However, in the
area ofjudicialization of politics as elsewhere, the smaller countries have traditions
of their own, here described by Jan ten Kate and Peter J. van Koppen (the
Netherlands), and Barry Holmstrom (Sweden).
So far I have been discussing primarily political and economic backgroundfactors
of the judicialization of politics. Another background factor can be found in the
recent development of political theory and legal theory. In the middle of the
eighteenth century the classical theories of natural law and natural rights were
demolished by David Hume. That destruction took place at the philosophical level
and did not, at the political level, prevent the American and French revolutionar-
ies from using those theories as an ideological platform.
However, up to the middle of the twentieth century, natural law theories were
on the decline, at least in the non-Catholic world. In countries such as Britain, the
United States, and the Scandinavian nations, several departments of philosophy,
jurisprudence, and political science were dominated by a more or less Benthamite,
utilitarian philosophy, emulating Hume and, thus, strongly critical of natural law.
Also, several party leaders, educated in these university departments, were influ-
enced by utilitarian principles.
After the war we have seen a change on this score also. We have experienced a
remarkable revival of natural law theories, or, maybe better, deontological theories,
in several academic quarters. Once more philosophers, political scientists, and legal
scholars have taken down from their shelves the works of, say, Locke, Rousseau,
and Kant, not for their historical contributions but for their topical interest:
One couldsay,to paraphraseBenjaminConstant,that the libertyof todayis not
that of othertimes,and the same can be saidof justice and all othervalues.But
the utopiandesirewhichnaturallaw doctrinesexpressis an irrepressiblefacet
of human nature, and thus natural law theories will be continuallyrevived,
especiallyin momentsof acute crisis (Cappelletti,1971:vii).
However, that development has not stopped at the revival of classic theories.
Inspired by the older thinkers, several modern philosophers have developed right-
based theories of their own, for example, A TheoryofJustice (Rawls, 1971). Taking
Rights Seriously(Dworkin, 1978) has become a much more common practice than

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TORBJORNVALLINDER 97

during the heyday of positivist philosophy. Against this background,Judicial Review


in the Contemporary World can be described as "a fascinating synthesis of two
seemingly contradictory schools of thought" (Cappelletti, 1971: vii).
Finally, when talking about background factors we should not forget the compar-
ative and international aspects. After the Second World War, the United States
emerged as the democratic superpower. To many democratic countries, old and
new, the American political system, with its great power and prestige for the
judiciary and for judicial review, became an ideal to be emulated.
There is also a specifically European tradition of judicial review. It is not, and
could not be, wholly independent of the American one. It is nevertheless a tradi-
tion in its own right (for an overview of different types of judicial review see Jackson
and Tate, 1992). The most important roots of this European tradition are to be
found in Austria. "Au commencement etait Kelsen!" (Favoreu, 1986a: 42), that is,
"In the beginning was Kelsen!" Hans Kelsen became a law professor, of a liberal
persuasion, in 1911 at the University of Vienna. After the First World War he was
entrusted with the task of drafting a constitution for the new Austrian republic.
This Austrian Constitution of 1920 included rules for judicial review. However, and
in contradistinction to the American system, the review was not to be handled by
the ordinary courts but by a constitutional court, especially designed for the task
by Kelsen.
In several of his works in jurisprudence Kelsen defended judicial review and
expanded upon his Austrian model. During the interwar years that model was
extensively discussed among European legal scholars and was also, to some extent,
emulated outside Austria (see Kelsen, 1923: 214ff.; Kelsen, 1925: 254ff.; Kelsen,
1929: 52ff.; Favoreu, 1986b: 4ff.). After the Second World War Kelsen's model of
judicial review once more became influential in several European countries
(Cappelletti, 1986: 302; Favoreu, 1986b: 4ff.).
Not only the developments in model countries like the United States and Austria
but also the efforts of different international organizations in defence of human
rights have influenced the judicialization process in some states. The United
Nations Charter of 1945, as should be well known, starts with a homage to human
rights, as does the Organization's 1948 Universal Declaration on the matter. The
UN has also enacted several conventions to the same purpose.
However, more important is the European Convention for the Protection of
Human Rights. Primarily through the European Court, it has been provided with
fairly strong legal teeth, which have made their mark in a number of countries
where the rule of law was supposed to be firmly established, as in Britain and
Sweden. Thus, the parliaments of those countries have been forced to amend legis-
lation pertaining to the rights of citizens-judicialization from abroad, that is.

Prospects
Adjudication and political decision making may be looked upon as the two ends of
a scale. At one end is what a French scholar several years ago called Le gouvernement
desjuges (Lambert, 1921), and an American scholar called Government byJudiciary
(Berger, 1977). At the other end we might place, say, total majoritarianism. In this
perspective the judicialization of politics we have seen in recent decades means a
movement towards the first end of the scale.
Of the contributions to this issue, I have so far mentioned six-the United States
and three big and two small European states, most of them with long democratic

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98 Introduction

traditions. The overall result is clear: the judicialization of politics is advancing.


Very much the same impression is supplied from the remaining contributions about
three fairly diverse countries, one in North America and two in Asia: Canada, Israel,
and the Philippines and Southeast Asia, described by Peter H. Russell, Martin
Edelman, and C. Neal Tate respectively. Taken together the articles in this issue
would warrant the conclusion that the judicialization of politics is a world-wide
phenomenon.
Against that background-what about the future? The prospects clearly differ
from country to country, depending on the constitutional traditions and the politi-
cal situation. However, it seems hardly likely that the ongoing process of judicial-
ization will be reversed or even brought to a stop. It has already, to some extent,
spread to Eastern Europe-Hungary, for instance, has enacted a bill of rights and
a constitutional court. In Russia the constitutional court has become a major polit-
ical actor. Similar tendencies can be found in former dictatorships outside the
Western world. In the end a new equilibrium will perhaps be established in many
countries between the rights of citizens and the rights and obligations of the
(legislative) majority.

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Biographical Note
TORBJORN VALLINDER has been Senior Lecturer in Political Science at the University
of Lund and also editor of the Statsvetenskaplig Tidskrift (The Swedish Journal of
Political Science). In recent years he has been engaged in research on the legal
problems of the mass media. Among his publications in English may be mentioned
"The Swedish Jury System in Press Cases: An Offspring of the English Trial Jury?"
in TheJournal of Legal History, vol. 8 No. 2 (September 1987). ADDRESS:Department
of Political Science, University of Lund, Box 52, S-221 00 Lund, Sweden.

Acknowledgements.Earlier versions of most of the articles in this issue were presented


to the Interim Meeting of the IPSAResearch Committee on Comparative Judicial
Studies in Bologna/Forli, June 1992. In preparing the manuscripts for print the
former and present Convenors (Presidents) of the Committee, Professors C. Neal
Tate and Martin Edelman, have been most helpful. Valuable advice has also been
provided by Professor Peter H. Russell.

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