M.P. Chiti - Judicial and Political Power – Where is the Dividing Line? A Praise for Judicialization and for Judicial Restraint

 “O, it is excellent

To have a giant’s strength, but it


to use it like a giant”1


W. Shakespeare

Measure for Measure

Act II, ll. 107-109

1. “The least dangerous Branch” ?

In a well known essay of 1788 published in the Federalist, Alexander Hamilton (alias Publius) wrote: “If we consider the different departments of power, the judiciary, from the nature of its functions, will always be the least dangerous [branch] to the political rights of the Constitution; because it will be the least in a capacity to annoy or injure them (…). The judiciary can take no active resolution whatever. It may truly be said to have neither force not will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. (…) The simple view of the matter proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two branches of government, and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter”.

The view of Hamilton on the judiciary as “the least dangerous branch” had sound grounds in the political thought of the eighteenth century. In spite of his mollified and somewhat abstract vision of the separation of powers, Hamilton’s position has been shared extensively, becoming a sort of “vulgate” on the role of judiciary in all jurisdictions.

In truth, just a few years after the publication of no. 78 issue of the Federalist, the US Supreme Court demonstrated that judges were a branch of power with teeth.

In 1803 the Supreme Court delivered the famous judgment on Marbury v. Madison1, renowned not for the rejection of the Marbury claim due to procedural reasons (under art. 3 of the Constitution the jurisdiction of the Supreme Court must be appellate, not original as assumed by Marbury), but for the celebrated statement “it is emphatically the province and duty of the judicial department to say what the law is”, and that “being the Constitution superior to any ordinary act of the legislature, the Supreme Court may strike down congressional acts and may invalidate executive acts based on such law and bind the Congress and the President to their decision”.

The opinion written by Chief Justice Marshall was at that time mostly considered a political position more than a legal statement, to be explained in that peculiar period when the Federalist Group aimed to politically annihilate President Thomas Jefferson via Madison. Over time, the judgment has shown its full importance, becoming one of the landmarks of the Supreme Court’s jurisprudence stating the role of federal courts as supreme in the exposition of the law of the Constitution, and the duty of the legislature to follow the Supreme Court’s interpretation.

Although not fully grounded, the strong doctrines are lasting and can be recalled after a long duration. The same Supreme Court has just recollected the Marbury case in a recent judgment of 2001 (United States v. Hatter2) and used Hamilton’s view considering that the guarantees for the judicial independence are quite necessary since the judiciary is still the weakest of the branches of power (opinion written by Justice Breyer3).

In the same mood, even facing an evident enlargement of the judicial role, a good part of the recent doctrine/legal science stresses the modest intrusion of the judiciary, in regard of the case by case method; even their jurisprudence is flexible and capable of a self-evolution (in patent contrast with legislation). Apart from the constitutional courts, these scholars consider that in general the judiciary treat issues of relative low relevance or of low politics; they operate in strict legal boundaries (not operating for the legislators, who establish the limits and who are subject only to the constitution). Their judgments may be reversed by Congressional or parliamentary acts and by the executive as well, at certain conditions, even when they form a consolidated jurisprudence.

The traditional view has not changed mostly also considering cases when judges patently operate as “legislators”; as where relevant authorities are lacking or the law is particularly obscure. In these cases the judges are considered just as “occasional legislators”4, who do not put at risk the general equilibrium of public powers, and do not invade the legislative field because they just fill juridical gaps, lacunas and solve uncertainness. Only in such peculiar cases “they will be national rulers rather than the law’s servant”; but in any case they remain subject to the ultimate decisions of political power5.

2. Myth and Reality

The influence of the “Hamilton doctrine”, even though not well grounded, as we have seen, has been powerful and lasting; but in the long term it has resulted in a misleading account of the interpretation of the American and European constitutional systems in the last decades. Moreover, it has given floor to an opposite view on the judicial role, in its turn excessive and not convincing. A typical example is the theory of the “Rule of Justices” by Robert Bork6 that I shall examine in the next pages.

Apart from these extremist views that will be examined later on, other important scholars have recognized that over time the role of judges is much more relevant than in the “vulgate”.

This evolution is correctly named as “judicialization” of the constitutional system, as “process of mutation of the role of judicial power with its growing capacity to shape strategic behavior of political actors”7.

Without any doubt the judges are treating “political” cases, that is to say cases which are highly relevant for the institutional and social life of each jurisdiction.

As for many other crucial features of the western systems, just after three decades since the Federalist, Alexis de Tocqueville noted in his “The Democracy in America” that “there is almost no political question in the United States that is not resolved sooner or later into a judicial question”8. His convincing remark could easily be expanded to the legal orders of Europe.

Since then, the trend for judicial empowerment has constantly developed in the national jurisdictions, with periods of greater acceleration as in the USA at the New Deal era; and in Europe in the post-war period of nationalization and planning law. More recently, a similar approach is evident on the privatization policies and in facing the many controversies caused by the new public policies named as the “retreat of the State”. An even clearer attitude is manifest facing the present financial and economic crisis in several countries.

However, the most influential judges – such as Chief Justice Roberts of the US Supreme Court - insist to affirm that the courts “do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders” (in National Federation of Independent Business v. Sebelius 9).

In truth, in the last decade most part of political and institutional issues once reserved to politics and to legislators are handled by the courts under substantive compliance by the politicians.

This development was expected at national level and clearly foreseen in the European Community, as a supranational system which takes up some crucial competences of the member States. On the contrary, the judicialization in international law has been quite new and in part not a foreseen phenomenon. In a short time, dozens of new courts and judicial bodies have been established.

In order to understand this trend correctly, it is necessary to verify the reasons of the judicial empowerment.

3. The judicial empowerment

In the national jurisdictions the main reasons of judicial empowerment are: the complexity of public powers, not three as in the traditional view, but in reality forming a galaxy of players10; the enlarging and deepening of executive implementation, with the consequent necessity of judicial review; pluralism coming out from devolution, regionalism and the overlapping of powers between the State and other bodies; the fragmentation of the sources of law, far away from the classic and easy picture of the sources of law; the emergence of new public interests never considered in the past. Last but not least, the substantive will of politics to delegate controversial choices to the judiciary.

I believe that it would be correct to extend to the major western jurisdictions the remarks on the role of judges that Lord Woolf expressed some years ago11, based on the British experience. According to Lord Woolf, the enlarged role of judges is inevitable when checks and balances are not working properly, as in periods of governments with a strong parliamentary majority, or where, at the contrary, the political system is highly fragmented (coalition governments, devolution, etc.). In this perspective, even going beyond the model of private rights jurisprudence, the judges do not encroach upon any power, nor do they act illegally or express particular political positions. They just execute the constitutional mandate to guarantee the institutional equilibrium and the rights of citizens against a power otherwise unlimited, virtually tyrannical.

Due to these concurring elements, the judicialization of politics has resulted inevitably. Today we can see almost everywhere an “ever accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy and political controversies”12 (R. Hirschl, Towards Juristocracy). Even issues of mega-politics are committed to the courts: electoral proceedings, great infrastructures, environmental protection, planning decisions, national security, migration and asylum, etc.

As said, the judicial empowerment is evident also beyond the national jurisdictions.

In the European Union, the most genuine supranational legal order, the Court of Justice (ECJ) has been assuming a creative role in developing the constitutional principles and the general principles of community law; of course, it is a role silently accepted by the member States as an effective compensation with the difficulties of a straight forward process of integration.

Also in international law the new courts are indirectly called to define the legal model, even treating particular cases (with the exception of the International Court of Justice). As demonstrated by R. Hirschl, “transnational tribunals have become the main loci for coordinating policies at the global and regional level, from trade and monetary issues to labor standards and environmental regulations”13.

Both in international law and supranational law the courts are working as a constituent power, as to give a substantive contribution to shape the main constitutional features of the legal orders14.

Then it is understandable that some commentators consider this peculiar role of judges as anomalous both under the traditional view (Hamilton doctrine) and under the democratic theory. As the latter, this role is even pathological, as carried out by persons not elected and politically unaccountable.

The most critical of commentators speak of a “Rule by Justices” (A. Bork), of a judicial tyranny. Other more benevolent critics speak of a “Juristocracy” (R. Hirschl); but about the wise judges it has been said with sarcasm that “the dictatorship of virtuous has often led to inquisitions and even witch hunts” (H. Kissinger15).

4. Legalism and its Critics

The judicialization is considered the most remarkable achievement of legalism. This term expresses the view that law and legal institutions can keep order and solve hard policy disputes16. It is a theory which considers the law as connected to moral and political issues, ordered trough legal categories whose interpretation is reserved to judges and lawyers.

Legalism does not have just a domestic scope; on the contrary it implies an evident cosmopolitanism17. Actually, there are values, principles and general rules which cannot be violated under any circumstances, as they represent a higher law. For the legalistic doctrine, therefore, it is not only possible, but necessary to extend the same ideas to the international legal dimension, where law can solve most of collective problems or improve their solution in a better way.

As we can understand easily, the passage from the critic to judicial empowerment to a harsh evaluation of legalism, and of excessive use (or abuse) of law has been rapid. The critics underline that legalism is close to a mystique of law, gives space to formalism, to an orthodox legal reasoning, to the Rule of Law as a metaphysics of law. So intended, legalism risks becoming a mere rhetoric of law as an end in itself. This is in absolute contrast with the crudity of the power of men.

However, the critic of legalism takes two rather different positions: the pragmatic one and one focused on a harsh legal realism, that is one based on mere power relations.

According to the pragmatic doctrine, “judicial action is neither a mechanic interpretation of constitutional words nor a willful assertion of judges’ values. Instead the judicial action should be the principal process of enunciating and applying enduring values embodied, even not sharply defined in the Constitution”18.

As said by Justice Richard Posner in reference to the USA, but with sound arguments also valid for many other jurisdictions, “the falsest or false dawns is the belief that our system can be placed on the path to reform by a judicial commitment to legalism - to conceive the judicial role as exhausted in applying rules laid down by statutes and constitutions or in using analytic methods that enable judges to confine their attention to orthodox materials and have no track with policy”19.

The second group of critics, who may be named as “realists”, considers that law and legal institutions have prestige only if they work in a highly effective manner; and this is possible only in a framework of legally developed jurisdictions, as the States. At the present and for some time more, international law is still lacking established and firm institutions; this prevents a serious role for legalism outside the States.

The remarks are at the same time an account (in truth not very accurate) of the international scene, but mostly grounds to prevent further enlargements of strong international organizations, in part created by the hands of the State.

Actually, the contrast between legalism and its critics is particularly strong in international law, which realists consider a simple amount of the States’ interests; a rather coordinated complex of rules deriving from the States acting in their interests, where the relations are bases on bilateral, direct agreements. Whereas the “legalists” believe that international law has a dimension which goes over the States’ interest, assuming the equality of sovereignty and the existence of universal human rights. To the legalists, law and courts are able to ensure order and solve even political issues; in particular, the courts can fill lacunas in international law and provide original occasions of cooperation among the jurisdictions.

5. The Multilevel and Multilayered Judicialization. The European “Exceptionalism”

At a distance of more than two centuries from the Federalist, when criticism of judicialization is the prevailing mood, when the judiciary are almost considered the “most dangerous branch” of powers, I believe that this is an appropriate time to take stock on these issues.

Firstly, it is necessary to distinguish between the constitutional and the political role of the courts; roles that are often confused.

Judge-made law is ‘political’ when resulting from cases which are political by nature: electoral proceedings, decisions on infrastructures of national importance, human rights, bioethical issues, etc,). Acting on these peculiar controversies, the judges de facto take part in the public discussion actively; but not necessarily with a biased attitude or ones expressing tendentious positions20.

On the other side, the jurisprudence is “constitutional” when it interprets and implements the constitution, as higher law. Also this jurisprudence is “political” in a generic meaning; but its peculiarity is that it has the Constitution and the values there embodied as a legal parameter.

Secondly, in the present world heavily manned by courts, the issue on judicialization cannot be considered as a whole without qualifications and distinctions and further detail. The main distinction is related to the three levels of jurisdiction: national, supranational and international. Of course, these levels are not sharply distinct and impermeable; it is known that the legal space is now global and interactive among the many players; it is also known that there exist various “passerelle” principles elaborated by the courts to connect different jurisdiction, as a principle of “margin of appreciation” about the ECHR for the Council of Europe. But the constitutional features of the three legal models (States, Supranational and International Organizations) remain different.

Thirdly it is necessary to clarify the true meaning of legalism: is it the law of rules and mere technicality, full judicial review of public acts or abstract rhetoric of a vague but substantive Rule of Law? Moreover, is it just a domestic legalism focused on national courts which are capable of producing an effective and consistent jurisprudence or is it, as I think, a cosmopolitan legalism which stresses the universality of human rights and does not distinguish the rules according to the scale of powers and the capacities of persons?

Fourthly, we must ascertain if the judiciary may be interpreted according to the traditional doctrine of democratic legitimacy, as for the other two main branches (legislative and executive). Also this issue must have an articulated solution, according to the three levels of judicial operation.

A last and not least question concerns the nature of the new international courts: are they full judicial bodies (as independent and impartial bodies) or are they in an ancillary position to the national chancelleries, some of their “adjuncts”21 ?

5.1. The new dimension of judicialization

In domestic legal jurisdictions, as we have seen, the judges have enlarged their role. Everywhere, besides the traditional power of private adjudication it is firmly established that judicial review supervises public action. Moreover, the courts decide cases of patent political (sometimes mega-political) character.

However, the other main branches maintain power for conditioning and limiting the judiciary. Let us think of the procedural rules, recurrently amended by the legislators under the impulse of the executive (i.e. rules on standing; access to justice); to discipline of the judges’ professional life (length of the mandate, conditions of working). But let us consider also the power to reverse and consolidate jurisprudence, surely possible in civil law countries; and that a large corpus of judgments cannot be implemented or enforced without the support of executive power.

Therefore we can say obviously that the national courts have acquired a relevant role; which sometimes is political, but in developed constitutional systems rests on the base of an implicit agreement with the other branches power. At any moment the agreement can be set aside by the legislature (and partly by the executive) which reassumes its decisional supremacy.

The national judges, moreover, are part of a wider European and international judicial network; so that on many relevant occasions their decisions are influenced or even limited by higher law declared by ultra-national judges.

The most obvious example of this kind is European Union law, trough the procedure for preliminary ruling in cases where it is argued about the applicability and/or interpretation of European law.

Also in international law there are cases where national judges are bound by the decisions taken by the new international courts. This is certainly the case, for example, of the Appellate body of WTO.

In short, even though national judges have acquired a powerful role they remain conditioned by other public powers, as in the constitutional tradition. Moreover, they are influenced by new contacts/relations (networking) with the European and international courts.

5.2. Judicialization in the EU

As proposed, the discussion about politicization of the judiciary must take into account the different models of judicial systems beyond the States; the “ultra-state” judiciaries. First of all, the judiciary of European Union whose role is different from that one of the national judges.

The European judges operate in an environment which is as legalistic and coherent as the national ones; but the constitutional model of EU law is quite original, as is well known. Even after the recent evolutions, this model is still based on the “Community method” slightly redefined, as where the law-making process involves the power of the European Council for providing the necessary impulse for the developing of the Union and the general political guidelines, then detailed by the Commission; the power of the Parliament and of the Council to approve it and - particularly relevant in our perspective - the power of ECJ to review it.

The primary task for the Court of Justice is not adjudicating, but - under art. 19, para 1, Treaty on EU (TEU) - “ensuring that in the interpretation and application of the Treaty the law is observed”. Obviously, European judges decide also on the appeals lodged by the Member States, Institutions, natural and legal persons; but first of all they must uphold the Union and fill the wide spaces that are not well defined by European law. Technically, these are not legal lacunae because the Union has just attributed competences; but grey areas where European law is developing progressively.

We must draw a further distinction between the role of ECJ and the General Court. The latter operates with a method which is close to the one used by national administrative judges, adjudicating particular cases raised mostly by private interested parties. Of course, the General Court may occasionally contribute to shape general principles - as in the Kadi case (T-315/01)22 on measures to contrast international terrorism, with a judgment then reversed by ECJ (joint cases C-402/05 e C-415/05) - but its decisions are normally very specific. Differently, the ECJ was and still remains the constitutional driving power of European law, both deciding preliminary ruling cases and appeals against judgments of first tier.

The recent developments consequent to Lisbon Treaty do not lower the role of ECJ, and neither imply a return of the European judges to their “barracks”. But the new rules should lead them to a greater self restraint on highly controversial issues.

Further occasions for strengthening ECJ role come out from the recent wave of preliminary ruling proceedings raised by some national Constitutional Courts. As we can understand, it is a special occasion for a constitutional conversation (called also an European constitutional concert) which is producing a common attitude at the higher judicial level.

Even to the most sceptical observers of the ultra-national courts, the ECJ’s experience appears a success story in the process of European integration23. A role that I consider typically “constitutional”, and in some cases also as “constituent”.

At this occasion, I shall confine myself to underline the argument that ECJ judges have been the real Masters of European law; a role that they are maintaining also today and probably one that will be maintained in the future.

To describe this model, I would like to use the expression “European exceptionalism”. “Exceptionalism“ is often used to exploit the particular position of the USA in the world, one that extends beyond the legal dimension. I believe that the same expression could be used for the European Union, even in a time of disaffection to the Union. The inspiring principles of the Union (respect of human dignity, freedom, democracy, etc., art. 2 TEU) are not just formal principles written in the Treaties as on the sands, but they are legally binding obligations (as under art. 3, para. 5, and art. 21, TEU), enforced by the Institutions and reviewed by the Court. The Union operates as a value-based supra-national player, and it shall guarantee those principles inside its borders in an Area of freedom and justice.

5.3. Judicialization in international law

The third case concerns international courts, and it is the most discussed and controversial topic.

Traditionally, international law – being elaborated, approved and executed by the States; in the whole, firmly in their hands - did not know a proper international system of remedies and courts. Disputes were treated by diplomacy, once the sword had been set aside. Only general controversies between States were considered legally relevant.

This model was followed also in 1945 when the International Court of Justice was established as part of the UN framework; even if the Court represented a real innovation at the international level, partly overcoming the bilateral diplomatic method for solving controversies, according to the largely accepted view that “International affairs are too important to be left to diplomats alone”.

The scenario has deeply changed in the recent period. Dozens of courts and similar bodies have been established: full judicial bodies, quasi judicial bodies, consultative bodies, etc. These new courts operate at global or regional level; they do not have any hierarchy, neither clear relations among them. Some time there is standing for private parties; but when this is not allowed, the States can support their claims. International courts form a judicial galaxy which conceals important differences, and which remains obscure if not clarified adequately. Let me take two examples by way of illustration: the judicial system of WTO and the European Court on Human Rights of the Council of Europe.WTO has mostly abandoned the tradition of international law, where the States are the Masters of the treaties, having many features of a supra-national organization. Also their courts are different, forming a full judicial system, articulated at two levels, which intentionally has abandoned the previous GATT model, based on optional arbitrations. The new WTO judicial model is open to the litigation brought by States, but de facto it is open also to private parties when States consider their positions as having general interest.

The evaluation on the WTO dispute settlement model is unanimously positive after two decades of experience. The commentators we have called “realist” believe that this positive view depends on the substantive consideration by the judges of the real weight of the litigant States and the strength of relations between them. Other commentators - quite negative on this experience - consider that WTO is essentially a club of developed world, which talks the language of globalization, but this is a globalization that emanates from the North and remains under its control24 . In brief, the third of an “unholy Trinity” of global economic institutions with the World Bank and the International Monetary Institute25.

The second example, the European Court of Human Rights, is quite different to the WTO courts. Under the Convention for the protection of Human Rights and Fundamental Freedoms, the Strasbourg Court is a body of an international organization, but - as you know - the Council of Europe has institutional ambiguities, as it is deeply imbricated in the Member States’ jurisdictions and connected with the European Law under art. 6, para 2-3, TEU.

As regards the relations with the Member States’ jurisdictions, an illuminating case is the Italian one. The Constitutional Court has considered that the ECHR integrates the primary constitutional law of the Country as a source of second constitutional level (“norme interposte”); as such, it binds acts of Parliament, but it must respect the Constitution in the whole and not only its fundamental principles as in the case of European Union law (judgments nos. 347-348/2007)26.

It is discussed whether the Convention is directly applicable in the Member States; in that regard the Court of Justice has recently stated that the Convention will be not directly applicable until the completion of accession to the ECHR under Art 6 TEU. Therefore, at the moment the Convention can be just an inspiring source of law for national judges and a generic support for their findings; as it was the case of the Charter of Fundamental Rights before its full recognition as primary law of the Union (art. 6, para. 1 TEU).

The third relevant character of Court of Strasbourg relevant for this paper is the fact that it is open to the private parties’ appeals. Actually these appeals are the greatest part of the litigation before the Court.

Obviously, the Court is accessible also for non EU citizens, if citizens of the Convention’s member States (as Russia or Turkey). A good recent example is the appeal raised by shareholders of Yukos, a Russian Company nationalized by that State, judged by the Strasbourg Court in two cases (20.9.2011, emended on 17.1.2012, and 1.8.2014)27. The Yukos case is important because it has been treated by other courts and arbitration bodies28.

6. Ambiguities of the new international Courts

The examples we have considered show a great variety of courts at the international level29. However there is a common thread which links all these experiences: the global polity is increasingly dependent upon the courts, which secure adequate consistency to a global system not yet finished, giving systematic position to rules which are different in their origin and legal character to national ones30.

What is there that is more “constituent” or “political” about the international courts ? May we affirm that after the passage from (brutal strength) relations based on the sword to the diplomacies it is now the turn of gowns and lawyers?

The answer is positive only in part. The main international issues are still treated directly by the States, sometimes even using force. The International Court of Justice does not work adequately mostly due to the opposition of the powerful countries to maintain their oligopolitical power. Its experience expresses a crash between the ideal of a global legalism and the material reality of politics.

On the other side, the most sensible economic litigation is attributed to the courts, which, from this apparently secondary task, have been able to develop a body of common principles, part of a new global law which once was totally monopolized by politics.

Quite peculiar, as seen, is the role of the European Court of European Rights. Its competences are primarily not economic, but focused on the protection of the rights enshrinded in the Convention. In this way the Court gives a daily decisive contribution to a new set of general principles of universal value.

To sum up, we can agree with Sabino Cassese31 that the global polity is becoming increasingly dependent on the judiciary at all levels. In particular, the developing global law finds its grounds in the remedies provided at international, supranational and national level.

However, I believe that even in these fields the judges are not true law-makers, because they are not operating in a normative vacuum. Their mission is to give order to the great variety of rules, to clarify the legal relations among jurisdictions; in a few words, to help to build a system as far as they are able.

The relevance of international courts, despite their peculiarities in comparison with the national judges of the judicial tradition, may be seen from the rude reaction of some legal scholars and political scientists, mostly American.

A model position is expressed by Eric Posner in his book “The Perils of Legalism”32, the epilogue of two decades of researches. According to Posner, legalism does not fit in properly with international law because in this context strong institutions do not exist, due to the conscious will of the great powers. To Posner it is just a mirage that the new courts are allowed to elaborate a global legal order; which, moreover, is a mirage in itself, a pseudo-legal order because it is unreal that there might be legislations without legislators, enforcement without enforcers, adjudication without traditional courts.

As said this position - not unique, as demonstrated by other well known scholars as Robert Bork - unveils a precise policy of the great powers not to invest political and personal capital into strong international institutions. When these institutions are necessary, as in the case of the International Monetary Fund, they remain under strict control.

In any case, Posner and friends are more honest than those who “routinely preach the virtues of law, while exempting themselves from many of its constraints” (M. Mazower)33.

If the new courts are not appreciated by lawyers who express the interests of the major countries, the correct criticism on this experience has opposite grounds: in general international courts are not really independent as required for a full judicial body, being subject to the will of the major countries, which shape their organization, composition, members’ appointment, procedural rules and so on.

At the moment - but probably also in the future - the new courts have mostly the form, rather than the substance, of real courts. This is particularly evident for nomination and appointment of the international courts’ judges. They are selected from a homogeneous international elite, who share the same values and legal criteria. Their jurisprudence is largely predictable and never seen as a threat to the basic interests of the main countries. It is not extreme to say that the new courts are ancillary to the main States.

The legal science, so far, has been captured by the positive novelties of the courts; only giving any serious attention to the disputable issues. But “All that glistens is not gold”. My proposal stands for a more comprehensive view of the new international courts, on standards comparable to those used for the national courts.

7. Some final remarks

Let me try to put order on these reflections and to get a conclusion, if possible in times of great evolution and huge confusion.

I have five final remarks, open for the presentation.

Firstly. The doctrine of a feeble judicial branch has definitively faded away. Probably, this doctrine has never been correct; as unreal and ideological. However, today, it is undisputable that the judges have a dominant role in setting policy and taking part in all major institutional and social issues. But the size of judicial empowerment and its consequences are different according to the kinds of judges.

To date, domestic judges have assumed a clear political role; but always operating in well defined constitutional systems and observing the limits drawn by the other branches.

The peculiar judicial role is even wider in the EU due to the characters of this supranational jurisdiction, where the Court of Justice has been decisive for the European legal integration and in establishing the European Community and then Union as “a Community of Law”. They are still participating actively at the building of the European “constitution“, due to the special features of this constitution as a model of constitution in progress.

Secondly. The judges’ competence is not limited to private rights adjudication; they control public power trough the judicial review procedure, so as to perform a constitutional duty to balance the different branches of power. Again the EU model is peculiar, as indicated by art. 19 of TEU: “the Court of Justice shall ensure that in the interpretation an application of the Treaty the law is observed”.

Even if the judges’ power could be significant, it is ridiculous to speak of a judicial dictatorship, of a “Rule by Judges”. Judges are lions, but they remain lions under the throne or Parliamentary mace.

Thirdly, legalism must not be intended as a negative, pejorative notion meaning formalism, passive legal orthodoxy, the idyllic power of laws and not of men. But as the living experience on earth of the Empire of Law, which works effectively protecting democracy against the tyranny of majority rule trough constitutionalization and judicial review34. The courts are the capitals of the Empire of Law and the judges its protectors35

At least in the European legal space the principles commonly intended as forming the Rule of Law are effective, respected, taken seriously.

Courts are the fundamental watchdogs of legalism. They are developing this role at their best at national level and in the EU; only in part, for the moment, in international law where power (even brute force) mostly matters. But also in international law “islands of legality” are emerging, which represent the core of a new constitutional order36.

Legalism, even in any possible meaning, is preferable to “imperium37. Without legality there remains only imperialism, crude political and legal imperialism.

Fourthly. I feel the widespread criticism against the judicial empowerment is misguided in suggesting that the judges are neither elected nor accountable.

In truth, the judges are not part of the democratic wing of the constitutional system, based on the peoples’ will38. Instead, they form the main component of the system of guarantees. However correct this distinction would be in principle, it cannot hide the practical tension between the democratic theory and judicial review, expressed by Bickel as the “counter-minoritarian difficulty”. Only the wisdom and the self-restraint of judges can make this tension tolerable.

Fifthly. The legal nature of international courts is still controversial. They are realizing relevant achievements, but there remain unacceptable features as for selection of members, rules of procedure and the matters outlined above.

In short, are the new courts true judicial bodies or just a cosmetic adjunct to chancelleries of the greatest States? It is a question which cannot be bypassed.

In the whole, the paper has resulted as a praise for juridification and for legalism, correctly directed. But I conclude with the hope that, de facto, judges are not taken by the lure of power; in a way not to leave unjustified scope to their critics’ arguments. Sometimes it happens, unfortunately.

“Moderation”, “restraint” is my appeal for judges.

1 I am indebted for the quotation to Richard Posner (How Judges Think, Harvard UP, 2008, 323), who writes wisely: “this is an admonition for the Justices of the Supreme Court, and indeed for all judges, to pounder”. 

1 137 U.S. (1803).

2 557 U.S. (2001), 561.

3 Justice Breyer is manifestly influenced by the political and legal ideas of the Constitution’s Founding Fathers. We can confirm his attitude in the very recent opinion in National Labor Relations Board v, Noel Canning, US Supreme Court, 573 (2014), where he recalls literally other views of Hamilton about the need of the vigor of government to the security of liberty (even if the conclusion is against the improper use of the presidential powers).

4 R. Posner, Reflections on Judging, Harvard UP, 2013, 148 ff.

5 D. Beatty, The Ultimate Rule of Law, Oxford UP, 2004.

6 R.H. Bork, Coercing virtue: the worldwide rule of judges, American Enterprise Institute Press, 2003.

7 M. Shapiro – A. Stone Sweet, On Law, Politics and Judicialization, Oxford UP, 2002.

8 A. de Tocqueville, Democracy in America (1835), Vintage books, 1961, 102.

9 567 U.S. (2012).

10 D. Feldman, The “New Separation of Powers”, Constitutionalism, and the Regulation of Public-Private Cooperation, ERPL, vol. 25, 2013, no. 2, 597.

11 H.K. Woolf, Judicial Review. The Tensions between the Executive and the Judiciary, in Law Quarterly Review, 114, 1998, 579; rightly recalled in this discussion by T. Zwart, Overseeing the Executive. Is the Legislature reclaiming lost territory from the courts?, in Comparative Administrative Law, S. Rose-Ackerman – P.L.Lindseth (eds), Edward Elgar Publishing, 2010, 148 ff., 152.

12 R. Hirschl, Towards Juristocracy, Harvard UP, 2004, 12 ff.

13 R. Hirschl, The New Constitution and the Judicialization of Pure Politics Worldwide, 75 Fordham Law Review, 2006, 722.

14 See C.N. Tate – T. Vallinder (eds), The Global Expansion of Judicial Power, New York UP, 1995.

15 H. Kissinger, Does America Needs a Foreign Policy? Towards a Diplomacy for the XXIth Century, Simon and Schuster, 2001,273. More recently on these themes by the same Author: World Order, Penguin, 2014.

16 E. Posner, The Perils of Global Legalism, University of Chicago Press, 2009, 80 ff.

17 G. Amato, Il costituzionalismo oltre i confini dello Stato, in Riv. Trim. Dir. Pubbl., 2013, 2; M. Kumm, The Cosmopolitan Turn in Constitutionalism, in Ruling the World. Constitutionalism, International Law and Global Governance, J. Dunoff – J . Trachman (eds), Cambridge UP, 2009.

18 A. Bickel, The least dangerous branch, 35 ff.

19 R. Posner, How Judges Think, Ibid., 15.

20 J. Bell, Policy Arguments in Judicial Decisions, Oxford UP, 1983. Quite different was Professor John Griffith’s view expressed in his controversial book The Politics of Judiciary, Harper Collins Publisher, 5th edn., 1997.

21 M. Mazower, Governing the World, Allen Lane, 2012, 343 ff.

22 Finally reversed by the Court of Justice: judgement 3.9.2008, joint cases C-402/05, C-415/05, Kadi and Al Barakaat International Foundation/Council.

23 C. Guarnieri, Judicial Independence in Europe: Threat or Resource for Democracy?, in Representation, 49, 2013, 347. of the same Author with P. Pederzoli (eds), The Power of Judges: a Comparative Study of Courts and Democracy, Oxford UP, 2002. A positive view is expressed also by a critic of legalism as E. Posner, The Perils of Legalism, Ibid., 153.

24 M. Mazower, Governing the World, Ibid., 361.

25 Again, M. Mazower, Governing the World, Ibid.., 362.

26 Corte costituzionale, 22.10.2007, n. 348 and 349.

27 Case OAO Kompaniya Yukos v. Russia, n. 14902/04.

28 Arbitral Tribunal, under the auspices of the Permanent Court of Arbitration (PCA), arbitral Judgement 18.7.2014.

29 E. Posner speaks of a fragmentation of international justice (The Perils of Global Legalism, Ibid., 150 ff.

30 S. Cassese, I tribunali di Babele. I giudici alla ricerca di un nuovo ordine globale, Donzelli Editore, 2009; and Il diritto globale. Giustizia e democrazia oltre lo Stato, Einaudi, 2013. For a more traditional position see: M. Prata-Roque, New Challenge of Democracy, general report at the EGPL Conference 2014 (to be published in ERPL 2015).

31 S. Cassese, I tribunali di Babele. I giudici alla ricerca di un nuovo ordine globale, Ibid., 92-93.

32 E. Posner, The Perils of Legalism, Ibid.

33 M. Mazower, Governing the World, Ibid, 404.

34 As expressed by R. Dworkin in many occasions. Inter alia: Freedom’s Law. The Moral Reading of the American Constitution, Harvard UP, 1996; A Bill of Rights for Britain, Chatto and Windus, 1990.

35 R. Dworkin, Law’s Empire, Harvard UP, 1986.

36 G. Silvestri, Costituzionalismo e crisi dello Stato-nazione. Le garanzie possibili nello spazio globalizzato, in Riv. Trim. Dir. Pubbl., 2013, 905 ff., 914.

37 The notion of “imperium” is here used in a sharper meaning than in the well known article by Professor Daintith, The Executive Power Today: Bargaining and Economic Control, in D. Oliver – J. Jowell (eds), The Changing Constitution, 2nd edn, Oxford UP, 1989, 193.

38 S. Cassese, I tribunali di Babele. I giudici alla ricerca di un nuovo ordine globale, Ibid., 103-105.