Constitutional Courts' Activism and the Relation Between Law and Politics: A Legal Theoretical Contribution
| Pages | 1-29 |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Author | Mauro Zamboni |
Constitutional Courts’ Activism and the Relation Between Law and Politics 1
Constitutional Courts’ Activism and the
Relation Between Law and Politics:
A Legal Theoretical Contribution
M Z*1
A
If one looks at the Constitutional Courts and their place in the architectural
landscape of a constitution in a Western or Western-like democracy, they appear
to lean into politics through their activism in the political game. This leaning
appears to go against the (at least theoretical) nature of a court, which has the
task of settling legal cases, not dealing with political decisions. In particular, many
Constitutional Courts in the Western or Western-like democracies have grown
more distant from the legal arena (as the ultimate authority on what constitutes
valid law) and closer to the political one (by limiting and expanding the operating
space of the political actors and their legislative tools). The basic thesis of this article
is that, from a descriptive point of view, Constitutional Courts, though playing a
bridging role between the political and legal worlds, are – from an institutional and
functional perspective – primarily legal actors. Without a doubt, these Courts play
a role in the political game; however, their position as institutional actors should
be based upon the direct eects of their decisions (‘outputs’) in the legal arena,
rather than on the indirect consequences (‘outcomes’) in the political arena. As a
consequence, the article comes to the conclusion that the Constitutional Courts’
* Professor in Legal Theory at the Faculty of Law, Stockholm University, Sweden. I am grateful to
Jane Reichel, Maria Grahn Farley, Liane Colonna, and the anonymous reviewers for their very
helpful comments on earlier drafts. Any errors that remain are my own. Mauro.Zamboni@juridi-
cum.su.se.
11
Cambridge Law Review (2021) Vol VI, Issue i, 1–29
Constitutional Courts’ Activism and the Relation Between Law and Politics2
primary responsibility ought to be towards the legal community and the paradigms
governing its discourse.
Keywords: constitutional courts, politics, judicial activism, functions, institutional
position
I. I
If one looks at the Constitutional Courts and their place in the architectural
landscape of a constitution in a Western or Western-like democracy, they appear
just like the Leaning Tower of Pisa: they are essential in giving the landscape a
certain character, they are beautiful to behold, but they also instill a certain
discomfort. Just as the Tower of Pisa has an obvious feature that is quite unnatural
for a tower, that is, deviating from the ‘natural’ position of standing straight in
relation to the ground, so the Constitutional Courts, when observed in their
constitutional landscapes, can immediately be seen to lean into politics through
their activism in the political game. This leaning appears to go against the (at least
theoretical) nature of a court, which has the task of settling legal cases, not dealing
with political decisions.
Such leaning towards the political game on the part of the judges (in
particular at the highest levels) is not a novelty of our times, going back at least
to the late 18th century (as seen in the role of judges in the French Revolutionary
state) or the early 19th century (as seen in the role of the Supreme Court in the
institutional building of the United States).1 However, the role that the judicial
bodies play in the political arena has become one of hottest topics of debate in
the legal world in the last decades, often under the label of “judicial activism” or
“judicialisation of politics”.2 As regards what are usually the highest of the judicial
bodies, namely the Constitutional Courts (or under any other court operating as a
guardian of the respect for the constitutional documents on the part of the other
1 E.g., the French Loi des 16-24 août 1790 sur l’organisation judiciaire, Title II Article 12 <www.
legifrance.gouv.fr/achTexte.do?cidTexte=JORFTEXT000000704777> accessed 14 March 2021;
or the famous Marbury v Madison 5 US (1 Cranch) 137 (1803).
2 Ran Hirschl, ‘The Judicialization of Politics’ in Robert E Goodin (ed), The Oxford Handbook of
Political Science (OUP 2011) 253. E.g., Anke Eilers, ‘The Binding Eect of Federal Constitutional
Court Decisions upon Political Institutions’ (European Commission for Democracy Through Law
(Venice Commission, 22 May 2003) <www.venice.coe.int/docs/2003/CDL-JU(2003)018-e.pdf>
accessed 14 March 2021; or Sandra Day O’Connor, ‘On the Importance of Having A Fair and
Independent Judiciary’ (2006) 38 Third Branch 9, 10 (“Directing anger toward judges has had a
long tradition in our nation … While scorn for some judges is not altogether new, I do think that
the breadth of the unhappiness being currently expressed, not only by public ocials but in public
opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater
than in the past and is certainly cause for great concern.”).
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