Judicialization of Politics

… a core term in Governance and Institutions and Atlas100

Definition

Ran Hirschl (reference below, p. 721) defines the judicialization of politics as “the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies.”

Hirschl writes (page 721, 723):

“Armed with newly acquired judicial review procedures, national high courts worldwide have been frequently asked to resolve a range of issues, from the scope of expression and religious liberties, equality rights, privacy, and reproductive freedoms, to public policies pertaining to criminal justice, property, trade and commerce, education, immigration, labor, and environmental protection. Bold newspaper headlines reporting on landmark court rulings concerning hotly contested issues – same sex marriage, limits on campaign financing, and affirmative action, to give a few examples – have become a common phenomenon.”

“… It is sometimes confused with a generic version of judicial activism, with little or no attention to the distinction between reliance on courts for determining say, the scope of the right to fair trial, and reliance on courts for dealing with watershed questions of nation building and collective identity that lie at the heart of a nation’s self-definition.”

Andrew Petter (reference below) makes similar points using the term “legalization of politics.” Petter writes (page 33):

“Since the Charter came into force in 1982, issues of rights in Canada have increasingly become identified and understood as being legal rather than political in nature. This development, which reflects a global trend in favour of legalising public affairs, has been encouraged by politicians as much as by lawyers and has produced two spheres of public discourse: a sphere of justice and rights that has become the primary domain of lawyers and courts and a sphere of policy and interests that remains the principal preserve of politicians and legislatures. Moreover, there can be no question as to which sphere dominates in the event of conflict. For all of the talk of “dialogue” between courts and legislatures, those who speak in the language of justice and rights have a huge rhetorical and political advantage over those who speak in the language of policy and interests.”

Petter concludes (page 46):

“This process has increased the influence of lawyers and legal discourse within Canadian society while diminishing that of politicians and democratic engagement. Moreover, such legalisation has not been confined to the judicial arena: it has had a profound influence on the way political issues are considered and treated within governments, legislatures, and society at large. One aspect of legalised politics that I find especially troubling is the use of the Charter by public officials as a means of escaping political responsibility. Having been in government, I understand how tempting it can be to invoke the Charter to bolster a political argument or to delay making a decision, and I have succumbed to this temptation myself on occasion. What disturbs me is that such tendencies seem to have become endemic and that politicians and other public officials are turning to the Charter with increased regularity to justify or avoid taking positions on contentious issues, to shift political responsibility to the courts, and to try to discredit the political views of others.”

Three faces of judicialized politics

Hirschl describes (pages 723-725) three interrelated processes:

  1. the spread of legal discourse, jargon, rules, and procedures into the political sphere and policy-making forums and processes. The ascendancy of legal discourse and the popularization of legal jargon are evident in virtually every aspect of modern life. It is perhaps best illustrated by the subordination of almost every decisionmaking forum in modern rule-of-law polities to quasi-judicial norms and procedures. Matters that had previously been negotiated in an informal or nonjudicial fashion have now come to be dominated by legal rules and procedures.
  2. the expansion of the province of courts and judges in determining public policy outcomes, mainly through “ordinary” constitutional rights jurisprudence and the judicial redrawing of boundaries between state organs (e.g., the separation of powers, federalism). Not a single week passes by without a national high court somewhere in the world releasing a major judgment pertaining to the scope of constitutional rights protections or the limits on legislative or executive powers. Of these, the most common are cases dealing with classic civil liberties, primarily criminal due process rights, various aspects of the rights to privacy, and formal equality – all of which expand and fortify the boundaries of the constitutionally protected private sphere, often perceived as threatened by the long arm of the encroaching state and its regulatory laws. …”
  3. the reliance on courts and judges for dealing with what we might call “mega-politics” – core political controversies that define (and often divide) whole polities. The judicialization of mega-politics includes a few subcategories: judicialization of electoral processes; judicial scrutiny of executive branch prerogatives in the realms of macroeconomic planning or national security matters (i.e., the demise of what is known in constitutional theory as the “political question” doctrine); fundamental restorative justice dilemmas; judicial corroboration of regime transformation; and, above all, the judicialization of formative collective identity, nation-building processes, and struggles over the very definition – or raison d’être – of the polity as such, arguably the most problematic type of judicialization from a constitutional theory standpoint.”

Atlas topic, subject, and course

Courts, Tribunals, and Commissions (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Sources

Ran Hirschl (2006), Fordham Law Review, Vol. 75, No. 2, pp. 721-754, at https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=951610, accessed 7 November 2016.

Andrew Petter (2009), Legalise This – The Chartering of Canadian Politics, in Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms, eds. James Kelly and Christopher Manfredi, pp. 33-49. Vancouver: UBC Press.

Page created by: Ian Clark, last modified on 7 November 2016.