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International Political Science Review / Revue internationale de science politique
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TORBJORN VALLINDER
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"
(OED Vol. 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 decisionmaking 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
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Introduction
92
Actors
Court
Legislature
* several parties
judge)
Working methods
* open hearings
* weighing of arguments
Basic decision-making
rule
Output
* decision made by an
impartial judge
* settling of individual
cases but cf.
Implications
precedents, esp.
judicial review
* ascertaining the facts
(what has happened)
and the relevant rule
(what should be
applied), "the only
* bargaining, often
* compromises
* log rolling
* the majority principle
* allocation of values
(often economic),
"the politically
possible solution"
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 principles, 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 judicialization of politics may roughly be said to signify upgrading the first principle at the
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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TORBJORN VALLINDER
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
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 adjudicatory character (cf. Bell, 1987).
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 The Rights 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 henchmen, 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 Federalist Papers (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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Introduction
94
it shall pass no bills of attainder, no ex postfacto laws, 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 contrary to 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.
(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
Modern Democracies as 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?
NEOCONSTITUCIONALISM
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TORBJORN VALLINDER
95
During the first three years of the 1930s the political situation in Germany was
rapidly transformed from a democratic Kulturstaat into 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 Reichstag was 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 halftruth. 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 extensive 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
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, Freedom under
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 Socialism and the New Despotism (Crossman, 1956). In his pamphlet,
function has been steadily narrowed for the last hundred years, as small-scale
capitalism has been transformed into oligopoly and the flimsy structure of the
Victorian State has developed into the Leviathan which 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.
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
So far I have been discussing primarily political and economic background factors
on the decline, at least in the non-Catholic world. In countries such as Britain, the
Also, several party leaders, educated in these university departments, were influenced 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 could say, to paraphrase Benjamin Constant, that the liberty of today is not
that of other times, and the same can be said of justice and all other values. But
the utopian desire which natural law doctrines express is an irrepressible facet
of human nature, and thus natural law theories will be continually revived,
especially in moments of 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 rightbased theories of their own, for example, A Theory ofJustice (Rawls, 1971). Taking
Rights Seriously (Dworkin, 1978) has become a much more common practice than
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TORBJORN VALLINDER
97
during the heyday of positivist philosophy. Against this background, Judicial Review
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 tradition 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
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 legislation 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
des juges (Lambert, 1921), and an American scholar called Government by Judiciary
(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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Introduction
98
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 judicialization 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 political 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.
References
Bell, J. (1987). "The Judge as Bureaucrat." In Oxford Essays in Jurisprudence (J. Eekelaar and
Cappelletti, M. (1986). "General report." In Le controle juridictionnel des lois (L. Favoreu and
J.A. Jolowics, eds), pp. 301-314. Paris: Economica.
Crossman, R.H.S. (1956). Socialism and the New Despotism. London: Fabian Society.
Dworkin, R. (1978). Taking Rights Seriously. London: Duckworth.
Favoreu, L. (1986a). "Europe occidentale." In Le controlejuridictionnel des lois (L. Favoreu and
J.A. Jolowics, eds) pp. 17-68. Paris: Economica.
Favoreu, L. (1986b). Les cours constitutionnelles. Paris: Presses Universitaires de France.
Harlow, C. and R. Rawlings (1984). Law andAdministration. London: Weidenfeld and Nicolson.
Hayek, F.A. (1944). The Road to Serfdom. London: Routledge.
Jackson, D.W. and C.N. Tate, (eds.) (1992). Comparative Judicial Review and Public Policy.
Westport, CN and London: Greenwood Press.
Kelsen, H. (1923). Osterreichisches Staatsrecht. Ein Grundriss entwicklungsgeschichtlich dargestellt.
Kelsen, H. (1929). "La Garantie juridictionnelle de la Constitution (La Justice constitutionnelle)." Annuaire de l'Institut International de Droit Public: 52-143.
Lambert, E. (1921). Le gouvernement des juges et la lutte contre legislation sociale aux Etats-Unis.
L'experience americaine du controlejudiciaire de la constitutionnaliti des lois. Paris: Giard.
Madison, J. et al. (1987). The Federalist Papers (Isaac Kramnick, ed.) Harmondsworth: Penguin
Books.
Mill, J.S. (1989). On Liberty (Stefan Collini, ed.). Cambridge: Cambridge University Press.
Oxford English Dictionary. (1989). 2nd ed. (Prepared byJ.A. Simpson and E.S.C. Weiner.) Vol.
VIII. Oxford: Clarendon Press.
Paine, T. (1976). The Rights of Man (Henry Collins, ed.). Harmondsworth: Penguin Books.
Rawls, J. (1971). A Theory ofJustice. Oxford: Oxford University Press.
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TORBJORN VALLINDER
99
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
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