The Role of Judges in Political Struggles (original) (raw)
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Selection of Judges, the role of politics
The Judiciary in Chile today: Reflections on its normative structure, 2024
This paper presents an overview of the role of politics in the selection of judges, and its impact on key pillars of a republican judicial system that respects due process and the rule of law, such as judicial independence, both internal and external. This presentation is part of the Colloquium "The Judiciary in Chile today: Reflections on its normative structure", organised by the Universidad Mayor and the Pan American Institute of Procedural Law, Chile Chapter.
What is “Politicisation” of Constitutional Courts? Towards a Decision-oriented Concept.
In: Geisler, Antonia/Hein, Michael/Hummel, Siri (Hrsg.): Law, Politics, and the Constitution. New Perspectives from Legal and Political Theory. Frankfurt/Main u.a.: Peter Lang, pp. 31–45., 2014
‘Politicisation’ is one of the most frequently used keywords in public discourse and scientific research on constitutional courts. However, whereas the concept of judicialisation, which is equally important in this field of research, has been the subject of considerable discussion in political and legal theory, a distinct definition of the term politicisation is lacking in many studies. In light of this, we address the question of how politicisation of constitutional courts can adequately be understood. To this end, we examine the theoretical conceptions of the relationship between politics, law and constitutional adjudication that underlie the different understandings of politicisation. Based on our findings, we develop a decision-oriented concept of politicisation, which is not only suitable for many theoretical approaches, but can also be detected in numerous empirical studies.
Judges and Policy Making Authority in the United States and the European Union
Institutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reason-
Judicial politics on the ground (with C. Vigour), Law & social Inquiry 42 (2): 292-297
2017
This symposium focuses on judicial politics at the micro level. Its aim is to shed lighton justice in action, drawing on an ethnographic approach to explore the routinedecision-making practices of judges and other legal actors, and to study their interactionswith citizens and politicians. Each article is based on close observation of the interactionsbetween legal professionals and administrative actors who are at the frontline in local andlower courts. By examining a variety of jurisdictions around the globe, the articles in thissymposium offer fresh insight into “judicial politics on the ground.”
The judge: a new actor in the political landscape
Edward Elgar Publishing eBooks, 2020
As is the case for other research fields, both the judicial system and the actors performing its numerous functions can be observed from different perspectives and, to a certain extent, these may complement one another. Although legal scholars were the first to engage in this field-practically colonizing it for some time-the social scientists who came later developed an increasingly rich toolbox that now includes a variety of methods, theories and concepts progressively devised to approach the multifaceted world of justice. Our attention will focus more closely, though not exclusively, on the latter framework. In the European context, academic lawyers have traditionally cultivated the study of courts, judicial procedures and jurisprudence, mostly favoring a legal dimension. The formal rules that establish how the system should operate and how the judiciary should act are doubtless fundamental components of the administration of justice insofar as they provide valuable information that scholars cannot neglect whatever their perspective. Yet we know that implementing rules is neither a simple nor an obvious process. Laws do not always generate the expected outcomes owing to a host of factors, ranging from the nature of the issues to be addressed to the complexity of bureaucratic machineries. Such factors may also produce distorting or undesirable effects in implementation and laws may even remain totally or partially unenforced (Howlett and Ramesh 1995). To describe how judicial institutions work in practice, it is thus necessary to look beyond the normative dimension. Appropriate instruments are, therefore, required to investigate both sides of these institutions: how actual behavior develops, and interactions within this environment. This approach enables us to present an image of justice not solely confined to formal data. With this aim, contributions from other scientific fields have multiplied since the middle of the past century, first in the United States and later in Europe. All of them fall within the extended family of social sciences. Although they differ greatly, these studies generally tend to give priority to the operational
Law and Critique, 2022
The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe's agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decisionmaking. Mouffe's concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature-juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of ongoing collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a 'relative sovereignty', being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not 'apply itself' on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe's theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.
2019
Constitutional Courts are under attack these days. To understand the developments of the last years, the paper analysis the rise of courts in contemporary legal orders as a first. The legal power as well as the political influence of courts increased significantly in the last 30 years. Based on these developments, the scholarly debate focused on questions of the interrelation between the legislator and the judiciary. In the meantime, we can, however, observe the rise of the executive, which re-gains power and affects the role of the courts (as well as other actors). The consequences especially in the context of neo-authoritarianism and nationalism are an attack on courts in manifold ways. The paper identifies and structures these strategies of disempowerment of courts. This includes increasing institutional influence on courts, personal pressure on judges as well as procedural changes, which create possibilities of control and limitation of courts. In conclusion of these developments, an erosion of the rule of law can be identified. Finally, strategies are developed by the paper, how courts in transnational networks could support each other and how civil society can strengthen the importance and the resilience of independent courts.