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McGill University
Political Science
POLI 330
Maria Popova

POLI 330: LAW AND COURTS IN EUROPE FINAL READINGS COURSEPACK 14. Ran Hirschl “Towards Juristocracy: the origins and consequences of the new constitutionalism” 2004 Thesis = Expansion of judicial power has taken place primarily in democratic polities. Expansion of judicial power was brought through the constitutionalization of rights and the establishment of relatively autonomous judiciaries and SC armed with judicial review practices Waves of consolidated democracy: - Southern Europe 1970s - Latin America 1980s - Central and Eastern Europe 1990s The existence of an independent and active judiciary appears to be a necessary condition for, and an inevitable by product of, the proliferation of democracy during the 2 half of the 20 th century  expansion of judicial power is associated with political and economic liberalization in post-authoritarian or quasi-democratic policies Evolutionist theories: - It defines the trend towards the constitutionalization of rights and the fortification of judicial review as inevitable by product of a new and near universal prioritization of human rights in the wake of WW2 - The presence of effective, written bill of rights is seen as proof of constitutional development - It regards the constitutionalization of rights and the establishment of judicial review as fortifying the separation of powers among the executive, legislative and judiciary o Supporters of this approach regard the constitutionalization of rights and fortification of judicial review as the outcome of successful efforts by well organized minority groups to protect themselves against the threat of majoritarian political whims and to increase their impact on policy outcomes Functionalist explanations: - They cast constitutional transformation as an organic response to pressures within the political system itself - They suggest that the expansion of judicial power derives from a structural, organic political problem such as a weak, decentralized, or chronically deadlocked political system - In other words, the less functional the political system is in a given democracy the greater the likelihood of expansive judicial power o Scholars of judicial politics view the rapid growth of supranational judicial review in Europe as an inevitable institutional response to complex coordination problems deriving from the systemic need to adopt standardized legal norms and administrative regulations across member states in an era of converging economic markets Institutional economic models: - They see the development of constitutions and judicial review as mechanisms to mitigate systemic collective action concerns such as commitment, enforcement and information problems - They believe that political leaders of any independent unit want to promote sustainable LT economic growth and encourage investment that will facilitate the prosperity of their polity Realist, strategic approach to judicial empowerment focuses on various power holders‟ self-interested incentives for defense of the judiciary. It makes 4 assumptions: - Legislative deference to the judiciary through constitutionalization - Take into account events that did not occur and the motivation of political power holders for not behaving in certain ways - Political and legal institutions produce differential distributive effects: they privilege some groups and individuals over others - Because constitutions and judicial review hold no pursue strings and have no independent enforcement power, the voluntary self limitation through the transfer of policy making authority from majoritarian decision making arenas to courts seems to run counter to the interests of power holders in legislatures and executives o This approach emphasized human agency and specific political incentives as the major determinants of judicial empowerment! 15. Donatella Della Porta and Alberto Vannucci “Corruption and Anti- corruption: the Political Defeat of „clean hands‟ in Italy 2007 Mani pulite, or Clean Hands investigations opened a window of opportunity to overcome the various anomalies of Italian politics. It was a nationwide Italian judicial investigation into political corruption held in the 1990s. It led to the demise of the so-called republic, resulting in the disappearance of many parties. Some politicians and industry leaders committed suicide after their crimes were exposed. Italian political class has only partially renewed itself, with a large number of politicians being recycled from the parties of the “First Republic”. Italy shows the capacity of civil society and the political institutional system for opposing those practices of corrupt exchange. See lecture for trials and more information 16. Jose Maria Maravall “The Rule of Law as a Political Weapon” 2003 Rule of law: consists of the enforcement of laws that have been publicly promulgated and passed in a pre-established manner; are prospective, stable, clear and hierarchically ordered; and are applied to particular cases by courts independent from the political rulers and open to all, whose decisions respond to procedural requirements, and that establish guilt through the ordinary trial process 3 arguments: - If the accountability of politicians is limited, the probability that politics becomes judicialized increases - Suppose that government and opposition do not collude, and that the latter complies with democratic outcomes because it expects to have some chance of winning the elections in the future. Yet when the expected future arrives, the opposition looses again. It then does not turn to dictatorship but introduces new dimensions of competition in which judicial activism becomes instrumental - The strategy is carried out by the government – a government may manipulate judicial activism in order to consolidate its power and weaken the opposition Main points: - The rule of law will reinforce the control of citizens over their rulers’ representativeness in 2 ways o Independent courts will correct the myopia of democratic governments, mitigating the influences of the ST o Independent courts will facilitate the monitoring of rulers, providing citizens with information via the mutual vigilance of separate powers  In this ideal world, democracy and independent judiciary do not coexist in harmony: they support each other! - Democracy and the rule of law can provide opportunities and incentives for politicians to subvert each other - Two kinds of strategies: o One in which politicians use democracy to subordinate the judiciary and to overcome the limits set by the rule of law o Another in which politicians use existing norms and independent judges to undermine democracy as a regime 17. Maria Popova “Political Competition as an Obstacle to Judicial Independence: Evidence from Russia and Ukraine” 2010 It was thought that politicians offered independent courts when political competition is intense and incumbents cannot expect to win elections indefinitely. Here, Popova argues that in electoral democracies political competition has the exact opposite effect on judicial independence that it purportedly has in consolidated democracies: it hinders rather than promotes the maintenance of independent courts. She proposes a theory of strategic pressure, which posits that in electoral democracies, political competition: - Increases the benefits to incumbents of dependant courts - Fails to increase the costs of exerting pressure on the courts - Increased the number of court cases whose outcomes matter to incumbents o Thus weak incumbents try to extract favorable judicial decisions in a greater number of cases, which leads to the politicization of justice and the subordination of the courts to the executive She comes up with 3 hypotheses: - Intense political competition dramatically increases the benefits that incumbents in electoral democracies can derive from pressuring the courts and as a result creates a strong incentive for weak incumbents to attack the judiciary - In electoral democracies, political competition does not increase the costs associated with pressuring the courts - In electoral democracies, political competition produces a “politicization of justice” effect In electoral democracies, subservient courts are the norm, rather than the exception, because they are more valuable to incumbents and incumbents have an easier time imposing their preferences on the courts Ukraine: - Judicial disempowerment goes hand in hand with increasing fragmentation of political and economic power because rival elites continue playing power politics and abusing judiciary in order to gain and or remain in power - The high stakes of political competition force rival elites to use all available resources to win elections and or to remain in power - Facing electoral uncertainty, the rules and the opposition try to pressure or to buy judicial loyalty, to influence judicial decision making, and to enforce favorable court decisions - Ukraine judiciary is in crisis today because the powerful feel that they can intervene in any judicial trial and that they are above the law Russia: - Courts fared better in comparison with their Ukrainian counterparts, but they also failed to act as watchdogs for electoral rights. They did not punish the incumbents for their ample use of administrative resources, as candidates supported the Kremlin appeared to have a slightly higher rather a significantly lower probability of winning an electoral registration dispute - See lecture for examples Judicial independence was low in both countries during the parliamentary election
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