University Essay

The judicialisation of politics is where there is a reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies (Hirschl, 2011: 1), and has become an intrinsic factor of modern governing, with a profound transfer of power from representative institutions to judiciaries (Hirschl, 2006: 1) diminishing the demise of the political question doctrine and marking a transition to what is termed juristocracy . (Hirschl et al, 2008: 1). This essay will analyse and conclude that the judicialisation of politics is democratic as it provides checks and balances preventing other branches of state infringing on the people s democratic rights which also allows for greater transparency by ensuring legislation passed does not entail those same infringements, ensuring that parliamentary democracy stays intact, and it provides a basis for the enfranchised to use broader methods to hold the government to account.

Democracy can be defined as a government in which supreme power is invested in the people and exercised by them directly or indirectly through representation (Nwogu, 2015 1). In the United Kingdom, the Houses of Parliament are the sovereign legislative body, having the ability to enact new and change preexisting legislation as the U.K. has an unentrenched constitution, this allows for parliament to overwrite current constitutional laws, such as the House of Lords Act 1999. The unentrenched and uncodified constitution is argued to not lead to the judicialisation of politics (Sunkin, 1994: 1), yet the changes the incumbent government plan on enacting, such as the British Bill of Rights (House of Lords HL Paper, 2016: 5) would therefore have a legal stipulation of fundamental rights. Since the establishment of the U.K. Supreme Court (UKSC) in 2005 (Constitutional Reform Act 2005), there has been a development in the judicial review of parliamentary acts, including the use of the declaration of incompatibility (Human Rights Act, 1998: 2) to state that parliament has introduced provisions that are incompatible with the human rights act. To this date, the UKSC has declared incompatibility 29 times (Human Rights Joint Committee). If parliament introduces the new British Bill of Rights, the UKSC would have more substance to adjudicate a declaration of incompatibility. It is therefore understandable that it is argued the judicialisation of politics would lead to the unelected and non-representative UKSC having more extraordinary power, and thus being undemocratic as it is incompatible with the definition of democracy. However, I argue that the enhanced constitutional jurisprudence the UKSC would ascertain is wholly democracy.

The reason this is democratic is there have been a plethora of examples where the UKSC has been used to adjudicate on parliamentary and government actions, which have resulted in favourable outcomes in the public s interest. In Miller v. Secretary of State for Exiting the European Union, the UKSC ruled in favour of the respondent, with the court s ruling the executive cannot change a law made by Act of Parliament, nor the common law (UKSC, 2017 95). The conducive position of the courts to rule in favour of parliamentary sovereignty has a crystal-clear democratic outcome. As stated previously, democracy is only concurrent when supreme power is invested in the people (Nwogu, 2015 1). On that basis, the judiciary being used to address such public policy questions in the public s interest in utilising the tool it provides in preventing the democratic sovereignty of the elected representatives on being infringed thus displaying the judicialisation of politics to be a democratic tool rather than a democratic barrier.

In terms of the advancement of the judicialisation of politics globally, in terms of transitioning to and enhancing democracy, it is argued that to be constitutional requires each branch to exercise their proper role for the entire system to function correctly (Ginsburg et al, 2012 28). Suppose we use that premise to determine the validity of democracy with the judicialisation of politics. In that case, it is essential to determine the drivers of judicialisation as this is a crucial indicator as to understanding if the will and means of achieving it are from a democratic viewpoint. According to Hirschl (2008 15) The proliferation of democracy worldwide is a main cause of judicialisation . If that is that is the case, then it is contemptuous to argue that the judicialisation of politics is undemocratic providing that the judiciary does not overstep or violate its constitutional and independent role to undermine the rule of law and impair democratic government (Finnis et al, 2018 4). In the U.S., political activists have argued that the U.S. Supreme Court (USSC) is an undemocratic institution which subverts the will of the people (Machaj, 2011: 14). If you quantify the will of the people in terms of constitutional jurisprudence decisions made by the USSC, it is evident that this is an activistic bias position, and the statistics provide sufficient evidence that the judicialisation here is entirely democratic. In Obergefell v. Hodges, the USSC ruled in favour of same-sex marriage. During that time, a study by Gallup s annual Values and beliefs poll observed the public opinion to be in favour exceeding 60% each year since the ruling. Other constitutional issues have also been in public support, such as Roe v. Wade for abortion, which clearly shows the judiciary working in democratic interest.

Furthermore, the judicialisation has allowed the courts to make constitutional decisions that have determined outcomes which have improved democracy. For example, in the U.S. 2000 election, there was ambiguity in the results of the election, by <0.5% votes (Britannica 1). The USSC resolved this issue by halting the vote recount and declaring Bush president averting a possible election catastrophe. Therefore, politically it is inevitable that you will have activists arguing that the judicialisation of politics is undemocratic if rulings are not in their favour, yet in terms of the pragmatic function of judicialising politics, it is there to use the laws enacted by the democratic legislature and adjudicate on them either for constitutional review or when presented a case by a concerned/affected citizen it most certainly has achieved this fundamental principle of the judicialisation of politics.

Globally, there has been a monumental strive for greater legitimacy to international courts to resolve disputes both in civil and criminal cases. This radical drive for international judiciaries has undoubtedly lead to an increased judicialisation of politics. Although Just War and Realist theorists might not concur with this conclusion, a liberal justification for reduced national sovereignty to provide more extraordinary judicial powers to international courts on matters such as human rights, both absolute and limited, might result in a more rounded and augmented democratic globalised society. For example, data shows that nations compliance with ICJ ruling is 60% between 1987 and 2004, with overall compliance probably increasing (Paulson, 2004: 460). With the increase in compliance, increase in participation where 123 countries are state parties to the Rome Statute of the International Criminal Court (asp.icc-cpi.int), it is evident that international courts promote democratisation by increasing judicial participation and holding more nations to account (Kuyper Squatrito, 2017 172). This promotion of democracy through numerous means provides sufficient evidence that the judicialisation is indeed democratic as the multi-faceted (appellate bodies, criminal court and civil court) international bodies have enhanced democracy through accountability and adjudication resources.

When determining democracy, it is crucial to review public opinion. Reason being, the views of the public hold great importance over the ability for the judiciary to carry out political policy reviews and constitutional changes as it provides them with the mandate to do so. In a review held in 1999 by the National Center for State Courts (National Center for State Courts, 1999 12) shows the USSC being 14% higher in Great Deal Amount of Trust/Confidence than the State s Legislature, and the Courts in the Community ranking 5% higher in Great Deal Amount of Trust/Confidence. Although somewhat incremental, public opinion in trust and confidence being higher for both courts over the state s legislature denotes greater confidence and trust and therefore it can be argued it is more democratic as it carries a more significant mandate in public opinion. This means the judicialisation of politics could be met with a positive impression by the electorate, which would in-turn put it in a democratic position by representing the people.

Analysing and reviewing the evidence for the advancement of the judicialisation of politics and if this advancement is democratic, in terms of upholding citizens rights, boosting constitutional jurisprudence and as states the system is invested in the people and exercised by them directly or indirectly through representation (Nwogu, 2015 1), it is indisputable that the judicialisation of politics is democratic. In the introduction, it is stated that the factors of democratic validity were determined as greater transparency by ensuring legislation passed does not entail infringements, ensuring that parliamentary democracy stays intact, and it provides a basis for the enfranchised to use broader methods to hold the government to account. The UKSC displaying the judicialisation of politics to be a democratic tool rather than a democratic barrier via addressing political policies to protect the democratic interest of the public, the USSC providing constitutional writ to avert problematic outcomes and the increased participation and promotion of democracy by the international courts presents all the necessary indications that the judicialisation of politics meets the merits and warrants being viewed as democratic.

It should also be viewed in no small extent that the judicialisation of politics, in practical application, can further improve democracy by dichotomising the judicial system from the legislative and governing bodies, which in turn would increase judicial independence which allows courts such as constitutional ones to independently review and complete the crucial democratic tasks in checks and balances. Overall, there is absolute clarity in the necessity of the judicialisation of politics.