Judiciary

The Worldwide Expansion of Judicial Power

Judiciarization first takes the form of an enlargement of the competences of bodies responsible for controlling the constitutional nature of laws. This trend began in the nineteenth century in the United States (through the Supreme Court) and later spread to European parliamentary regimes (which in the second half of the twentieth century created institutions with similar powers). In the name of general principles of law, and because they were expected to interpret their respective constitutions, representatives of these bodies found themselves in a position to influence legislative output and to orient it across an ever-widening range of issue areas (civil rights, social and economic legislation).

Over the last few decades in particular, judiciarization has also led to an increased capacity among the magistrates to make judgments on litigation in sectors that have become increasingly complex, such as the organization of work, the protection of consumers and the environment, the activity of private companies or political parties, and so forth. The creation of new adjudicatory bodies (such as independent agencies, organizations for investigating alleged criminal activity of politicians like the U.S. Office of Special Prosecutor, international penal courts) all provided additional evidence of the reinforced power of judicial systems over national and international politics.

This process was also caused by two converging phenomena. On the one hand, judicial actors became more autonomous from political authorities and developed a professional culture and independence, which led them to involve themselves in issues that previously they had ignored. On the other hand, increased usage of judicial systems can be explained by an intensified demand for law by actors from civil society, often initiated and brought about by “cause entrepreneurs” (specialist lawyers, judicial activists). Since the 1970s, individuals and organized groups have increasingly taken actions through the courts to claim their rights, have them recognized, and demand retribution for damages they argue they have incurred. These actors have also used penal law as a means of getting the media interested in their causes and thereby publicizing those causes.

Law as an Instrument of Social and Political Regulation

Juridical arbitration has thus become an everyday instrument of social and political regulation. In this way, judges have participated in the affirmation and the [Page 505]legitimation of certain collective interests (minorities, associations, interest groups) by giving them and their claims credit within a political arena. The action of judges thereby influences the definition, hierarchization, and the treatment of political issues and social problems (for example, in the fight against different types of discrimination, the struggle against delinquency, the resolution of environmental conflicts, problems of succession). An increasing number of judicial actors have taken part in processes of political decision making either by acting as experts (in agencies responsible for setting the normative framework of modern economic or political governance, or in the committees that evaluate public policies) or through more direct interventions (within institutional arrangements for concentration and the formulation of policies set up by a range of administrations).

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