Dr Cristina Parau, Department Lecturer in European Politics and Societies at Oxford University, recently edited a special issue of the journal Representation. This issue focuses on the phenomenon of judicial activism in the political sphere. It brings together scholars from different disciplines that hold different perspectives on the judicialisation of politics. It focuses on the contrasts and complementarities of law and politics as modes of democratic representation.
According to Dr Parau, “this special issue seeks to advance our understanding of the judicialisation of politics by bringing together a diverse group of scholars who take different perspectives and apply different methods to investigating the phenomenon and and its impact on representative democracy. The transfer of policy-making power from popularly elected representatives to a judicial elite would seem to weaken democracy in a quite straightforward, zero-sum way, contributing to Europe’s already destabilising democratic deficit. On this account, a renewal of parliamentarism is the only effectual and legitimate cure. On the other hand, ‘representative democracy’ has been criticised since the eighteenth century as elite rather than popular rule; Aristotle classified it as ‘oligarchy’. Representation has defects that might be remedied by judicial intervention. Some scholars have suggested that judicialisation provides a venue for the more active participation of citizens marginalised by the failures of representation; while others even see in judges a form of representativeness with unique properties. The articles in this Special Issue probe these accounts.”
I recently asked her a few questions about the project.
You have developed a concept of ‘dormancy’ of parliaments in Central and Eastern Europe (CEE). Is this dormancy more characteristic in the context of judiciary reform than in other policy areas? Or is it part of a wider trend of loss of parliamentary initiative in favour of the Executive and independent agencies?
Dormancy means that officers of public trust are “asleep at the wheel”, even though they could and should have been awake. Although the phenomenon is not confined to post-Communist Central and Eastern Europe (CEE), the dormancy of Parliaments seems to be particularly acute in this region, at least in the policy domain of judiciary governance. Dormancy is observed to happen in degrees, hence the need to develop benchmarks for assessing it. British constitutional history reveals, for example, that Parliament in the 18th century was not dormant at initiating norms; rather, the loss of initiative has followed on the advent of mass suffrage and the professionalization of political parties as well as the rise of the administrative State. Developing benchmarks would entail a ‘turn to history’, going back perhaps hundreds of years if necessary to find more active Parliaments. From all we know from legislative studies, dormancy may be, as you conjecture, part and parcel of a wider trend of parliamentary decline across Europe and maybe the world. It appears to go hand in hand with centralisation of power in non-democratic institutions, and may be driven by the norm entrepreneurs of globalization, which after all is not an impersonal force like the law of gravity, but is rooted in purposeful, self-interested agency.
You argue that the judiciary has been empowered at the expense of parliaments in CEE. You then trace these reforms to the Executive. Would you say that judiciary empowerment is just reflective of the loss of initiative by the legislative to the Executive, rather than to the judiciary?
An insightful query. Some if not all CEE Parliaments were indeed assertive in the beginning yet within the first decade of the transition lost ground to the Executive. As a result, later waves of judiciary empowerment had to wrestle power away from Executives rather than Parliaments. On the other hand, judiciary empowerment as a trend began very soon after the fall of Communism, when legislatures still had ‘teeth’ and could have vetoed such designs. The question then remains: why didn’t they? The most striking fact is that constitutional law academicians were able to draw on the reputation and expertise of legal professional elites through their transnational networks, and with their backing to represent to both parliamentary and Executive politicians that the judicialisation of politics, already normal in the West, was the only legitimate model of judiciary-democratic power relations. Minority opinion to the contrary then became easy to shut down. This should train the spotlight on transnational networks and what kind of power resources they tap, how they can bathe themselves in an aura of consensus that marginalises all dissent. It would almost seem as if power were being drained from both domestic legislatures and executives and diffused not so much to domestic judiciaries as to transnational elite networks.
The puzzle you address in your most recent article is that CEE parliaments, in face of their disempowerment in favour of courts, are not behaving as utility-maximizers. However, Guarnieri argues in the same volume that “in a situation of electoral uncertainty, parties expect to rotate in and out of office and therefore to be in favour of limiting political power, also through independent courts.” Would you say that CEE parliaments aren’t utility-maximizers in this sense either?
This theory leaves out of account some interesting questions. There is little reason to believe that, once power is delegated to them, courts will behave independently or neutrally. The delegaters surely know this; why, then, do they prefer judicialization none the less? In ‘Explaining Judiciary Governance in Central and Eastern Europe’ (forthcoming in Europe-Asia Studies) I show that, once the judicializing institutional design template is in place, CEE politicians do tinker with them at the margins in self-interested ways, as by packing the courts with loyalists. Too little beyond that has been explained, however: only minor variations were observed on a template of transnational origin about which the literature is silent. That politicians should give away any power at all, let alone as much as they did in CEE, is a paradox. Parties in power maximise utility by keeping a tight rein on judiciary governance, not by ceding it to judges. Yet a transnational template to the contrary was received with virtually unanimous acclaim across the ideological spectrum right from the beginning of the constitutional and organic legislative revision process, well before many parties had even been formed, let alone knew anything about their fortunes at the next elections. In general, the rational choice literature attributes to political actors far more foresightedness and more perfect information than is realistic.
You write that the problem of courts contesting the key policy-making competences of parliaments has not arisen to its full extent yet in Eastern Europe: ‘Ample scope to remake public policy has been conferred on Eastern courts which, however, lie still dormant to their own unexploited opportunities’. Are you pointing at a flaw in the institutional design of the legislative and judiciary branches in CEE, or at an existing contest of power between courts and parliaments?
Formal institutional designs have yet to lead to radical changes in judicial practice. Judges in CEE continue to be ‘formalists’ (or strict constructionists), treating domestic law and constitutions as the legitimate sources of legal norms. This is changing, however, under the influence of Judicial Training Academies, which are ‘re-educating’ the younger cohort of judges to imitate the ‘activist’ style of the European supranational courts. In practice activism means judges shedding their inhibitions about reading their own policy preferences into law and especially constitutions on the ground that they are ‘living documents’ (rendered effectively dead-letter). Those affected most staff the lower court levels at present, but will be climbing up the judicial hierarchy over the coming decades. We can expect to see greater activism in the foreseeable future.