SYMPOSIUM
Courts and marginalized groups:
Perspectives from Continental Europe
Carlo Guarnieri*
Until mid-twentieth century, Continental European judiciaries were considered integral
with the established order. Today, the situation has changed: the subordination of the
judge to political majorities is declining. Judicial review of legislation has been
introduced, and judicial independence strengthened. These institutional changes have
supported the development of judicial activism. Organized judicial groups have
emerged—especially in France, Italy, and Spain—advocating a progressive
jurisprudence and developing policies aiming at defending minorities and marginalized
groups. The judiciary, traditionally considered a conservative organization, now seems
to be willing to carry out progressive policies.
To assess the judiciary’s role in protecting marginalized groups in Continental
Europe is not easy. The matter is extremely complex. There are not enough
systematic data on judicial decisions, and there is even less on the extent to
which these decisions are implemented or on the ways in which this implementation occurs.1 However, until the middle of the twentieth century, judiciaries on the Continent were generally considered pillars of the established
order; they would not have concerned themselves greatly with such groups.
Today, the situation has changed. The subordination of the judge to the law—
that is, to a parliament and, therefore, to political majorities—has been eroded.
Judicial review of legislation has increasingly become a trait of European political systems, and judicial independence has been strengthened almost everywhere. In some countries, these institutional changes have supported the
development of forms of judicial activism. In fact, in the last decades, organized
groups have emerged within the judicial corps—especially in France, Italy,
and Spain—that openly advocate some sort of progressive or radical jurisprudence and trying to develop policies with the aim of defending minorities and
marginalized groups. A puzzling landscape—seems to be emerging in these
countries: the judiciary—traditionally considered a corps where conservative,
* Professor of political science, University of Bologna. Email: [email protected]
1
Obviously, lawyers are interested only in decisions they think especially important for the development of the law. Usually they do not provide quantitative assessments. Implementation and the
impact of judicial decisions tends to lie outside their purview.
© The Author 2007. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
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if not reactionary, propensities prevailed—now seems willing to carry out, at
least in some cases, progressive policies.
Analysis of these judicial groups will allow us to assess the content of the
pertinent judicial decisions, at least in general terms. Here we will focus our
attention on ordinary courts. They process the greatest number of cases, as
well as the cases that are more likely to affect the majority of individuals; their
role in implementing judicial policies is extremely significant. Above all, it is in
ordinary courts that judicial activism has flourished.
1. The tradition of European civil law:
a bureaucratic judiciary2
Historically, the role of judges in European civil law countries tended to be relatively insignificant, politically speaking. In these states, the centralization of
political authority, which included the judicial function, was brought about by
the monarchies, to which judges were initially subordinated. The constitutionalization of political power and the consequent development of guarantees of
judicial independence partially weakened this relationship; nevertheless, the
integration of the judiciary into the structure of public administration was
maintained if not strengthened. The decline of the monarchy in the nineteenth
century did not radically alter the situation; it merely transferred the power to
exert influence over the judiciary to a parliamentary executive.
The tendency of civil law judges to be less independent is not the only element that has traditionally distinguished their position. On the Continent, in
contrast to the attitude prevalent in common law countries, mistrust of the
judiciary has always been high, and judicial power has been regarded as an
important power to be checked. Such was particularly the case in France, given
the role judges played in the last phase of the ancien régime. This means, for
instance, that a large group of disputes between citizens and the state do not
fall under the jurisdiction of ordinary courts but are assigned to special administrative courts, where judges are under greater governmental influence.3
More important, Continental judges were expected to act in a subordinate
capacity with respect to the political branches and to the norms the latter
enacted. For example, the law creating the French Cour de Cassation in
1790 openly stated that it was to be instituted “in close connection to the legislature.” This view reflected an historical interpretation of the separationof-powers principle that assigned a privileged role to the legislature, since it
2
For a more detailed analysis of the institutional setting of civil law judiciaries, see CARLO GUARNIERI
& PATRIZIA PEDERZOLI, THE POWER OF JUDGES (Cheryl A. Thomas ed., Oxford Univ. Press 2002).
3
Administrative courts form a separate judicial system, with the prestigious Conseil d’´État at the
apex. See JOHN BELL, JUDICIARIES WITHIN EUROPE: A COMPARATIVE REVIEW 47 (Cambridge Univ. Press
2006). Separate systems of administrative courts exist also in most civil law countries.
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represented the popular will, implying that there was no special domain
reserved to the judiciary. Beyond this, any form of judicial review of legislation
was ruled out, so the legislature, even under its procedural constraints, emerged
in a very strong position.4 In any case, the judiciary was composed mainly of
bourgeois or aristocratic personnel. Their autonomy vis-à-vis political power
was relative and typically exercised only in order to obstruct and delay the
implementation of reforms enacted by the legislature. For most of the nineteenth century and much of the twentieth, judges exhibited a broadly conservative outlook, where their role as “bouche de la loi”—as Montesquieu would
have it—made them guardians of the status quo.5
For a long time, thanks to the reforms carried out by Napoleon at the
beginning of the nineteenth century, France best exemplified the subservient
and apolitical judiciary. As political scientist Georges Lavau observes: “after
the demise of the ancien régime, the depoliticization of the judicial function
has been systematically pursued.”6 Compared with other democratic countries, guarantees of judicial independence in France were limited, while the
political significance of judges was dictated by the fragmentation of the judicial
system.7 As for Italy, with the unification of the country in 1861, the
Piedmontese judicial setting—modeled on the French and, therefore, strongly
influenced by the Napoleonic reforms—was extended to the rest of the country. This judiciary retained its hierarchical structure during the fascist regime
(1922–1943), since the strategy then became one of establishing special,
directly controlled tribunals to try all crimes considered politically significant.
After the demise of fascism, the bureaucratic nature of the judiciary was not
questioned in the postwar Constituent Assembly, and no radical changes
occurred during the 1950s. As will be explained, it was not until the early
1960s that a gradual process began to alter substantially the traditional nature
of the judiciary. The case of Spain is similar. The Spanish judiciary also had a
strictly bureaucratic organization, for the most part modeled on the Napoleonic
arrangement, that remained essentially the same through the period of
4
All this development is well analyzed in JOHN H. MERRYMAN, THE CIVIL LAW TRADITION (Stanford
Univ. Press 1985); and GIORGIO REBUFFA, LA FUNZIONE GIUDIZIARIA [THE JUDICIAL FUNCTION] (Giappichelli
1993).
5
CHARLES LOUIS DE MONTESQUIEU, DE L’ESPRIT DES LOIS [ON THE SPIRIT OF LAWS] 178 (Gallimard 1970)
(1748). The conservatism of traditional civil law judges is documented by MERRYMAN, supra note 4,
at 101–110 and REBUFFA, supra note 4, at 123–129.
6
Georges Lavau, Le juge et le pouvoir politique [The Judge and Political Power], in LA JUSTICE [JUSTICE] 59
(Presses Univ. de France 1961).
7
Relevant here is the role played by administrative courts. For example, the highest administrative
court, the Conseil d’État, has always played an important political role; its close connection to the
executive is well known. See Alain Bancaud & Philippe Robert, La place de la justice en France: Un
avenir incertain [The Place of Justice in France: An Uncertain Future], in LES MUTATIONS DE LA JUSTICE [THE
CHANGES OF JUSTICE] 161–197 (Philippe Robert & Amedeo Cottino eds., L’Harmattan 2001).
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Franco’s regime.8 It was only after the transition to democracy, with the 1978
Constitution, that substantial increase in judicial independence was achieved.
The situation in Germany was not so different. In the nineteenth century,
judges and prosecutors were organized according to the bureaucratic model,
with a monarchical government exerting a strong influence on a hierarchically ordered corps. During this period, the judiciary was purged of its liberal
members, who were replaced by conservative and monarchist judges, often
from the ranks of government-controlled prosecutors9 Thus, after 1918, the
Weimar Republic was faced with a strong antirepublican judiciary. However,
there were no purges and only a few judges took advantage of a law allowing
paid early retirement for those not willing to swear allegiance to the new republic. The vast majority of judges and prosecutors remained hostile or indifferent
to the new political regime, an attitude reflected in many judicial decisions.
In fact, during the same period, when judges were hostile to republican
laws, so the Weimar parliament was finding it could perform its functions only
with increasing difficulty; as a consequence, laws often contained vague
clauses, uncertainties, and contradictions. The reasons for this lie mainly in
the political system. The Weimar regime was characterized by a strong ideological polarization between political parties and, therefore, by unstable and
weak governments, often supported by political coalitions that were divided on
everything except their willingness to defend the constitution against attacks
by both left- and right-wing extremists. Thus, given a weak executive, highranking civil servants in the Ministry of Justice were actually in control of ministerial policies, exerting influence, in particular, over the operations of the
public prosecutor: “. . . favored by the mere figurehead character of an everchanging incumbent in the position of federal Minister of justice, and by the
absence of any effective parliamentary control, the professionals under the
guise of strict neutrality and freedom from outside interference developed
decidedly partisan criteria of their own in the conduct of their office.”10 Thus,
for instance, while violence on the part of the extreme left was harshly suppressed, right-wing extremism was tolerated. In the periods of intense political
crisis from 1919–1923 and 1930–1932, the judiciary was able to act with
greater autonomy, often revealing its conservative and reactionary
leanings.11
8
See LUIS MARIA DÌEZ-PICAZO, RÉGIMEN CONSTITUCIONAL DEL PODER JUDICIAL [THE CONSTITUTIONAL SETTING OF
JUDICIAL POWER] 95–102 (Civitas 1991).
9
See Walter Ott & Franziska Buob, Did Legal Positivism Render German Jurists Defenceless during the
Third Reich?, 2 SOC. & LEGAL STUD. 91, 92–94 (1993).
10
11
OTTO KIRCHHEIMER, POLITICAL JUSTICE 194 (Princeton Univ. Press 1961).
On the reactionary role played by the Weimar judiciary see, besides KIRCHHEIMER, supra note 10,
at 211–214, Henry W. Ehrmann, Judicial Activism in a Divided Society: The Rule of Law in the Weimar
Republic, in COMPARATIVE JUDICIAL SYSTEMS 75–92 (John R. Schmidhauser ed., Butterworths 1987);
and Ott & Buob supra note 9, at 94.
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2. The changes of the twentieth century
Since the middle of the twentieth century the traditional picture has changed
substantially, and an expansion of judicial power has characterized many
countries of the Continent. The reasons behind this development are many, but
they can be ascribed, in large part, to some significant institutional innovations,
the first of which—at least chronologically—has been the introduction of various forms of judicial review of legislation. Constitutional review developed
much later in Europe than in the United States. After the ancien régime’s negative experience with the parléments,12 constitutional review was not reestablished until the twentieth century. In 1920 the Austrian Constitutional Court
was established; during the same period, the Weimar Republic also introduced
a form of judicial control of legislation to ensure consistency with the Basic
Law.13 However, it was only after the Second World War that constitutional
review began to be adopted more widely in Europe through the establishment
of separate constitutional courts. First Germany created the Bundesverfassungsgericht in 1951, followed by the Italian Corte Costituzionale in 1956.
Two years later, the transition to the Fifth Republic in France brought about the
creation of the Conseil Constitutionnel. In 1979 Sweden introduced a form of
judicial review of legislation that has slowly but increasingly had an impact on
that legal system.14 Spain and Portugal joined this European trend in 1978 and
1983, respectively, with the creation of constitutional tribunals (Tribunal
Constitucional). Finally, in the transition from communism to democracy in
the 1990s, Eastern European countries have created constitutional courts
based on a combination of both the American and European models.
The time difference between the American and European adoption of
constitutional review is mainly related to the constitutional arrangements
instituted in Continental Europe in the wake of the French revolution. As
we have already pointed out, the most visible sign of this European context is
the supremacy of the legislature, which became synonymous with popular
sovereignty, as suffrage rights were gradually extended. This circumstance
helps to explain the long reluctance to establish any control over legislation by
an external and independent authority. As is not the case with the American
model, legislative supremacy allows for no limitation on the power of the
majority, nor can it accept a higher law intended as a set of positive rules
12
Namely, the appellate courts that claimed to be the guardians of the kingdom’s fundamental
rules, and which played a reactionary role in the last decades of the French ancien Régime, being
“among the bitterest enemies of even the slightest liberal reform.” MAURO CAPPELLETTI, THE JUDICIAL
PROCESS IN COMPARATIVE PERSPECTIVE 125 (Clarendon Press 1989).
13
A system of judicial review has also existed in Norway for most of the twentieth century. See
EIVIND SMITH, CONSTITUTIONAL JUSTICE UNDER OLD CONSTITUTIONS (Kluwer Law International 1995).
14
See Bernard M. Ortwein, The Swedish Legal System: An Introduction, 13 IND. INT’L & COMP. L. REV.
405, 414 (2003); BELL, supra note 3, at 289–292.
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imposing restrictions on the will of the majority. In this context, written constitutions and inventories of fundamental rights may be seen merely as declarations (important but essentially nonbinding) that parliament can amend at its
pleasure. Thus, popular sovereignty and parliamentary supremacy have acted
as powerful checks on the adoption of external controls over legislation, especially one vested in a judicial body. Beyond this, continental systems have often
presumed that the judiciary itself is a power to be checked. The memory of the
abuses committed by the courts of the ancien régime and the general fear of
“government by judiciary”15 have helped to shape constitutional frameworks
based on a rigid definition of the principle of separation of powers rather than
on checks and balances. Here, the political center of gravity is located between
the legislature and the executive at the expense of the judiciary, which, consequently, is not a true third branch. As a result, judicial authority—if it may
be called that—is often placed outside the political sphere in a subordinate
position. Finally, the bureaucratic structure of the judiciary, modeled on an
ordinary administrative corps, not only imposes hierarchical constraints on
judicial decision making but also is the basis for a widely used argument for
denying courts certain prerogatives such as the judicial review of legislation.
The latter is considered to be, in some way, political and thus not to be entrusted
to a body devoid of any form of democratic legitimacy.16
The institution of judicial review has had a profound impact on the role of
the judiciary, even if, following the model envisaged by Hans Kelsen, it has
been concentrated in a separate, specialized court.17 For example, through
“incidental” proceedings, litigants have an opportunity to challenge the
constitutionality of the law applied in their case. If this occurs, an ordinary
court must assess whether constitutional grounds exist to refer the case to the
constitutional court. In this way, ordinary courts represent a necessary filter
between the litigants and constitutional adjudication; as a result, they exert
a significant degree of control over access to the constitutional court. In
15
This expression, coined by Louis B. Boudin, Government by Judiciary, 26 POL. SCI. Q. 238–270
(1912), was introduced in France by ÉDOUARD LAMBERT, LE GOUVERNMENT DES JUGES ET LA LUTTE CONTRE LA
LÉGISLATION SOCIALE AUX ÉTATS UNIS [THE GOVERNMENT BY JUDICIARY AND THE FIGHT AGAINST SOCIAL LEGISLATION
IN THE UNITED STATES] (Giard 1922), who vigorously denounced the danger of reactionary judges
striking down social legislation, as was occurring at that time in the United States.
16
REBUFFA, supra note 4, at 26–32. In addition, it has been maintained that the formalistic culture
of bureaucratic, career judges makes them unfit for the task of judicial review. CAPPELLETTI, supra
note 12, at 143–144.
17
The irony is that European constitutional courts seem to have been instituted because of a general mistrust of ordinary courts and with the aim of controlling them, CAPPELLETTI, supra note 12, at
142–146, a trend most noticeable in Southern Europe. See Pedro Magalhães & Carlo Guarnieri,
Democratic Consolidation, Judicial Reform, and the Judicialization of Politics in Southern Europe, in
DEMOCRACY AND THE STATE IN THE NEW SOUTHERN EUROPE (Richard Gunther, Nikiforos Diamandouros,
and Gianfranco Pasquino eds., Oxford Univ. Press forthcoming).
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addition, ordinary courts may raise constitutional issues of their own volition
in the course of a particular case, and such proceedings may then become an
instrument for furthering some form of judicial policy. To ask for a constitutional court ruling can be a means of promoting the personal values of individual judges and even those of their reference groups. Consequently, the ordinary
judiciary becomes an integral part of the process of constitutional review, even
though this function is entrusted to a separate specialized court. Incidental
proceedings are an example of what is termed “concrete” review of legislation,
since it is triggered by the application of law in individual disputes. This type of
review is found in most European countries that allow specialized courts
(administrative, labor, and so forth) as well as ordinary courts to refer cases to
the constitutional court (these include Germany, Spain, and Italy). The one
exception is France’s Conseil Constitutionnel, which can only address legislation not yet promulgated and, therefore, exercises only abstract review.18
At any rate, it is clear that constitutional courts do not restrict themselves to
what Kelsen described as “negatively legislating.” Their task is not only to rule
yes or no on a constitutional complaint. The decision-making procedures the
courts have established also allow them to participate actively in the policymaking process. As Alec Stone Sweet remarks, when constitutional courts
“announce legally binding interpretations of statutory provisions, they rewrite
or amend legislation, to the extent that the court’s interpretation meaningfully
differs from that of the government and parliament.”19 This practice has had
an impact on ordinary judges. They increasingly “use the techniques of constitutional law adjudication” in order, for example, to adapt parliamentary statutes to constitutional principles and values.20 Thus, if, in comparison with
their American counterparts, ordinary judges in Europe seem to play a lesser
role in the process of constitutional review of legislation, the introduction of
judicial review nevertheless has had an impact on the way in which they define
their role. The traditional deference toward legislation has been eroded; today,
judges tend to scrutinize ordinary laws to a greater depth according to constitutional norms, with the result that judicial creativity has been substantially
enlarged.21
This growth in the assertiveness of lower court judges has been supported
by the establishment and gradual expansion of supranational systems of
justice, such as those created by the European Union or the European
18
Other European courts perform abstract review, but enacted legislation can be challenged only
by public authorities (not including the judiciary); the executive, legislature, local governments,
and in Spain even the ombudsman (defensor del pueblo) can bring an action to the constitutional
court within a given period of time, which varies from fifteen days to three months from the moment the law is enacted.
19
ALEC STONE SWEET, GOVERNING WITH JUDGES 63 (Oxford Univ. Press 2000).
20
Id. at 128–129.
21
The point was forcefully made by CAPPELLETTI, supra note 12, at 3–55.
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Convention of Human Rights. Ordinary courts have seen new areas of intervention opened up and their discretionary powers extended—at least if they
are willing to employ them. European Community law has become a very real
system of supranational positive norms endowed with a substantial set of relatively coherent rules limiting the sovereignty of member states. For instance,
as is well known, the European Court of Justice has developed the “direct effect”
and the “supremacy” doctrines—which is to say, the direct application of community law to member states and, consequently, its preeminence over national
legislation. In case of conflict, Community law prevails over national. On the
basis of this, the Court has also declared that ordinary national courts have the
right and duty to enforce directly community law within their own legal systems. This injunction creates the possibility that national norms deemed inconsistent with community law will be rejected and, as a result, creates a sort of
diffuse constitutional review that is a genuine novelty in the European context.22 This process has been furthered by the recent constitutional developments in European law. The Charter of Rights issued in Nice in 2000 and the
constitutional treaty of 2004, although still not legally binding,23 have fostered
the emergence of a “European constitutional heritage,”24 which is exerting a
growing influence on European and national judges. Moreover, this sort of
supranational dimension has been strengthened by the trend toward network
building that today relates many judicial—and quasi-judicial—bodies in
Europe. For example, constitutional and supreme courts meet on a regular
basis in order to exchange information and points of views on legal matters, a
fact that cannot but have an impact on the way these courts—and the national
judiciaries—interpret the law.
If the introduction of judicial review of legislation in many European countries has increased judicial creativity, the creation of judicial self-governing25
bodies (especially in Latin European countries)26 has considerably affected the
22
See id. at 347–401; STONE SWEET, supra note 19, at 153–193.
23
The charter was not considered, strictly speaking, a legal document and the constitutional treaty has been rejected in the popular referendums held in 2005 in France and Netherlands. Thus, the
process of ratification is stalled as of this writing.
24
The expression is widely used. See, e.g., ALESSANDRO PIZZORUSSO, IL PATRIMONIO COSTITUZIONALE EUROPEO
[THE EUROPEAN CONSTITUTIONAL HERITAGE] (Il Mulino 2002).
25
26
Obviously, the actual degree of self-government varies from case to case.
Higher councils of the judiciary exist today in Belgium, France, Italy, Portugal, Spain, and in
some of the new EU countries like Poland. Other EU countries (for example, Netherlands and Denmark) have instituted judicial councils whose main task is court administration. See THE ADMINISTRATION OF JUSTICE IN EUROPE: TOWARDS THE DEVELOPMENTS OF QUALITY STANDARDS (Marco Fabri, Philip M.
Langbroek & Hélène Pauliat eds., L’Istituto di Ricerca sui Sistemi Giudiziari 2003); WIM VOERMANS
& PIM ALBERS, COUNCILS FOR THE JUDICIARY IN EU COUNTRIES (European Commission for the Efficiency of
Justice 2003). In 2004, the European Network of Councils of the Judiciary has been created, with
the aim of cooperating especially in matters regarding judicial independence. Today, fifteen countries of the EU belong to the network.
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relationship between judges and the political system; both developments have
increased the political significance of the judiciary. The higher councils of the
judiciary are collegiate bodies—composed in various ways of judges and lay
members—and are in charge of administering the status of judges. As we will
see, their impact has been a somewhat radical alteration of the organizational
setting of bureaucratic judiciaries. These organizations strengthen judicial
independence and, at the same time, foster new connections with the political
system. In this process the powers and composition of these self-governing
bodies become critical factors. Obviously, the more extensive their functions,
the stronger their role will be and the weaker the minister of justice will be.
Two additional factors to take into account are the ratio of judges to nonjudicial members on the higher councils and the way in which judicial representatives are chosen. Judicial independence will inevitably be stronger the higher
the ratio of members chosen directly by and from the judiciary.27
One of the main consequences of creating a higher council of the judiciary
is—rather obviously—to increase the external independence of the judiciary by
decreasing the traditional power of the executive. But since no higher council
is composed solely of judges, an important role remains for the institution that
appoint the nonjudicial members. This is usually a parliament, allowing the
political parties to bypass the minister of justice—whose powers thereby tend
to be weakened—and influencing the judiciary directly. The creation of a selfgoverning body also has consequences for the internal independence of the
judiciary. Entrusting the promotion and appointment of judges to a collegial
body, where normally all judicial ranks are represented, contradicts the traditional hierarchy principle, whereby only higher-ranking judges are entitled to
evaluate lower-ranking colleagues. In this way, the lower ranks acquire a new
power, since they can participate in the process of choosing higher-ranking
judges. Moreover, judicial elites have been further weakened by the diminished
power of their traditional ally, the minister of justice. As a result, it is not surprising that challenges to the very concept of a career judiciary by the lower
ranks have often been successful. It is not coincidental that in those countries
with higher councils the number of judicial ranks has been reduced, and the
influence of the senior judges’ assessments of lower-ranking judges seems to be
declining. By substituting an objective parameter (such as the number of years
in judicial office) for the subjective assessment of merit by superiors, the higherranking judges’ power is reduced. For instance, in Italy—the most extreme
case—promotions have de facto been abolished, at least from the economic
point of view, since judicial salaries and rank increase simply on the basis of the
number of years of service.
27
According to these criteria, there is no doubt that today the Italian judiciary has the highest
degree of independence among European civil law countries. See CARLO GUARNIERI, GIUSTIZIA E POLITICA
[JUSTICE AND POLITICS] (Il Mulino 2003).
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The erosion of hierarchical links has had considerable impact on civil service–style judiciaries and is particularly relevant to the general expansion of
judicial power. With the creation of higher councils, the reference group of
judges has become more varied. The traditional members of the reference
group, such as senior judges and legal academics,28 have decreased in importance, since they no longer enjoy a monopoly of power over judicial promotion. In addition, the professional criteria of the judiciary have also begun to
shift. Technical legal knowledge (and conformity to the ideology of the judicial
elite) is no longer the determinative element in promotions. The views of others
outside the judicial system (for example, political parties in parliament and also
unions and other interest groups) have gained in importance, especially if they
can influence the appointment of members of the higher council. Similarly, the
concerns of the media and the judiciary increasingly overlap, as judicial
actions—especially those of prosecutors—provide the media with news. In
return, the media have been able to support and publicize the actions of judges
and prosecutors.29 The growing influence of these actors is partially due to
broader changes in the political and social environment; however, it is also
encouraged by the declining significance of the traditional actors brought
about by the creation of higher councils.
Inside the judiciary itself, the higher councils have increased the importance
of a significant new actor, the judicial associations, since these are the groups
that organize the electoral process of judges. In Italy, where this trend is more
developed and no judicial member of the Higher Council of the Judiciary
(Consiglio superiore della magistratura) is likely to be elected without the backing of one of these groups, decision making in the Higher Council is heavily
dependent on alignments among them. On the other hand, the council also
comprises political appointees, and their point of view has to be taken into
account. Thus, magistrates interested in being promoted or transferred to
another position (the vast majority) cannot fail to take heed of the role of these
groups in the council’s decision making. In fact, as judicial actions gain political significance, the higher council may become the main institution where
the judiciary’s elected representatives can meet political representatives and
develop new relationships with the political system.30
Judicial self-governing bodies have thus opened up a new channel for
political influence, which may be understood as a consequence of the slow but
steady attempt to limit executive power and the concomitant strengthening of
judicial guarantees of independence. Even though the extent to which the
28
29
MERRYMAN, supra note 4, at 56–60.
See ANTOINE GARAPON, LE
1996).
30
GARDIEN DES PROMESSES
See GUARNIERI, supra note 27, at 150–153.
[THE GUARDIAN
OF
PROMISES] 74–82 (Odile Jacob
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judiciary intervenes in the political process is conditioned by the simultaneous
evolution of the political system, as well as by the way the judicial system
is organized, the connections between judges and the political system
nonetheless do influence judges and their reference groups, their conception of
their judicial role, and, therefore, their decisions.31 The experience of the Latin
European countries suggests that the creation of judicial self-governing bodies
can produce a radical change in the judiciary’s traditional hierarchy; this, in
turn, can diversify the judiciary’s reference group, which becomes more horizontal and, at least in part, increasingly external to the judiciary.
The expansion of judicial guarantees of independence has involved, at least
to some extent, public prosecutors as well. This process has been stronger in
those countries where judges and prosecutors form a single professional group.
In Italy, prosecutors enjoy the same guarantees as judges. As a consequence,
their autonomy is extremely high; the executive cannot in any way issue
instructions to them. In addition, prosecutors, together with judges, elect the
majority of the members of the Higher Council. In France, too, where the office
of minister of justice has been able, at least so far, to keep most of its traditional
powers, the autonomy of public prosecutors is growing. Moreover, since 1993,
the powers of the Higher Council have been expanded. Above all, judicial
investigations—often led by instructing judges who enjoy full independence
from the executive—have increasingly found support in public opinion, with
the consequence that the executive often has not been able to exert all its institutional powers on public prosecution.32
On the other hand, unlike France and Italy, Germany has seen little alteration of the judicial setting in the postwar period, apart from the institution of
the Federal Constitutional Court itself.33 Despite the fact that the Basic Law of
1949 envisages an important role for the judicial branch, the Weimar experience as well as American postwar influence led to the introduction of some
checks on judicial power. Today, judges and prosecutors remain organized
along hierarchical lines that allow the minister of justice, higher-ranking
judges, and senior prosecutors to shape their own and others’ careers in the
more traditional manner. The low level of judicial activism, in prosecuting
political corruption, for example, can be traced to the fact that “the prosecutorial hierarchy handles investigations of political corruption with extreme
31
For an analysis of the influence of the political context see GUARNIERI & PEDERZOLI, supra note 2, at
168–183. Where judges possess a high degree of independence and are free from hierarchical
controls, it is extremely important to identify their reference groups and their conception of the
judicial role.
32
See GARAPON, supra note 29, at 51–71; Bancaud & Robert, supra note 7, at 179.
33
Erhard Blankenburg, La Justice et sa place au sein du pouvoir politique dans l’Allemagne des années
1990 [Justice and its Place inside Political Power in 1990s Germany], in LES MUTATIONS DE LA JUSTICE,
supra note 7, at 13–45.
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caution.”34 Also, interest groups do not make extensive use of courts: “. . .
legal reformers are expected to lobby in the legislative arena, not in court.”35
Judges regard their relatively passive role as a protective barrier against
possible political interference and carefully guard their reputations as guardians of the law. This attitude has to be related to the fact that, after the war, in
addition to the introduction of a politically appointed Constitutional Court,
the only significant change has been that judges of the highest federal courts
are now chosen by parliament, thus reinforcing the influence of the main
political parties on the judiciary. The role of judicial self-governing bodies
and judicial associations is still limited, at least in comparison to their role in
Latin Europe.36
The limited political significance of the German judiciary has to be
understood in the context of the country’s high degree of political stability,
which has not been seriously altered by reunification. The German parliamentary system entrusts the executive with strong powers and, above all, is
founded on a stable party system with healthy parties supported by a network
of strong political organizations. With a significant level of party alternation
in government, elected institutions have been able to respond effectively
to political demands. This has reduced the scope for judicial action, which,
in turn, is constrained by traditional bureaucratic controls and by an array
of higher courts whose composition ensures that judicial values generally
correspond to those prevailing in the political system. However, since its inception in 1951, the Federal Constitutional Court has played an increasingly
significant role in the German political process, enjoying a growing prestige in
the academic legal community as well as with the general public. Although
constitutional court judges tend to define their role as guardians of the law
(trying, for example, to arrive at the supposedly right answer in the interpretation of the Basic Law), the appointment process ensures that the major
parties are proportionally represented on the Court and, therefore, that the
Court will not be out of step with the political majority for too long or to an
excessive extent.37
34
Erhard Blankenburg, Changes in Political Regimes and Continuity of the Rule of Law in Germany, in
COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE 249, 285 (Hans Jacob ed., Yale Univ. Press
1996). He also highlights the lack of investigative powers enjoyed by German prosecutors, at least
in comparison with French and Italian magistrates. Also the investigation, in 2000, involving
former chancellor Helmut Kohl—that led to his resignation from political activity—has been handled by the prosecution with notable caution.
35
Id., at 303.
36
Only in half of the Länder do judicial councils play a significant role in the process of recruitment
and promotion of judges. German judicial councils are composed of judges, lawyers and members
of the Land parliament. The latter are often in the majority.
37
Blankenburg, supra notes 33 and 34.
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3. The role of the judiciary in protecting
marginalized groups
The institutional changes analyzed here describe a context in which forms
of judicial—and also prosecutorial—activism have easily developed. Actually,
the growth of judicial activism in Continental Europe has been one of the
most significant developments of the last decades. There are, as well, some
specific traits that differentiate this experience from that of other countries,
including the United States. Since the 1950s, European judges—and prosecutors—have displayed a propensity to form union-like associations. Some of
these, especially since the late 1960s, have begun to elaborate progressive
judicial policies. Among the most significant of this sort are Magistratura
democratica in Italy, the Syndicat de la magistrature in France, and Jueces
para la democracia in Spain. In Spain and Portugal—where, unlike in France
and Italy, prosecutors are separated from the judiciary—we find also the
Union progresista de Fiscales and the Sindicato dos Magistrados do Ministério
pùblico, both well known for their progressive orientation. This development
has acquired a European—and international—dimension. In 1985, a European
federation of progressive judicial associations was founded: Magistrats
éuropéens pour la démocratie et la liberté (European Magistrates for Democracy
and Freedom, or MEDEL). Today, it comprises fifteen national associations
from eleven countries: Germany, Belgium, France, Spain, Portugal, Italy,
Greece, Poland, the Czech Republic, Cyprus, and Rumania. However, these
developments seem to have been most marked in the countries of southern
and Latin Europe. Apart from Germany—and German judges do not seem to
play a prominent role in the association—no North European country belongs
to MEDEL, indirect evidence that judicial mobilization in those countries seem
to be less developed.38
These groups are characterized by strong, vital associational activity. They
organize all sorts of meetings and seminars, edit books and reviews, and have
been able to obtain the collaboration of a significant part of the academic
community. In this way, judicial policies on a variety of politically significant
subjects are elaborated.39 In addition, they often intervene openly in political
debate and not only in matters directly or indirectly related to judicial activity.
The result is that the policies of the groups are widely disseminated among
the judges. Although there is no precise data about the extent to which
38
For discussion of the relatively passive role played by Swedish judges see KJELL A. MODÉER, EURO[EUROPEAN POSTAL CARDS] 99–116 (Corpus Juris Forlag 1994); BELL, supra note 3, at
265–277 and 289–297.
PEISKA VYKORT
39
Examples can be found in the reviews edited by these groups: Questione giustizia [Judicial Question] by Magistratura democratica [Democratic Judiciary]; Justice [Justice] by the Syndicat de la
magistrature [Judicial Union]; and Jueces para la democracia [Judges for Democracy] by the group of
the same name.
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these groups have been able to influence courts’ decisions, an indirect estimate
is provided by taking into account the support for these leftist groups inside
the judicial corps. In the case of Spain, where there is no direct election of the
higher council by judges, the support for the judicial left may be at least 10
percent of the judiciary.40 In Italy, in the 2006 elections of the Higher Council
of the Judiciary, the Magistratura democratica, together with two other
leftist groups, has been able to win more than 40 percent of the votes, electing
almost half of the judicial component of the council (seven out of sixteen).
In France, again in 2006, in the same sort of election, the Syndicat has been
able to obtain 21 percent of the prosecutors’ votes and 29.5 percent of the
judges’, with the result that now one sixth of the whole judicial component—
two out of twelve members—belong to the judicial left.
All these groups—capitalizing on the introduction of judicial review of
legislation and on the strengthening of judicial guarantees of independence—
tend to recognize judicial creativity openly, namely, the fact that judges (and
prosecutors) are constrained, only in part, by positive legal rules. In fact, it is
argued that their main task is to scrutinize carefully parliamentary statutes
and, when possible, to interpret them according to constitutional principles
and values and, when this option is not possible, to ask constitutional courts to
intervene in order to reestablish “constitutional legality.” All this activity
should be aimed, above all, at furthering the implementation of fundamental
rights. In this view, judges must play a pivotal role as the guardians of citizens’
rights, whose number has been slowly but steadily increasing, with a growing
list of civil, political, and, above all, social rights (housing, work, health, education, and so forth) now considered fundamental.41
The foregoing position is well summarized in the policies advocated by
MEDEL. The basic points of its program are the defense and strengthening of
judicial independence, the advancement of the democratic rule of law, the
defense of judges’ political rights (speech, association, unionism), and “the
defense of the rights of minorities,” especially the rights “of immigrants and
those most deprived, from a perspective of [the] social emancipation of the
weak.”42 An example of the concrete implications of this perspective is the
suggestion that labor contracts should be interpreted by judges, as far as
40
In 2001 about 400 judges—out of almost 4,000—declared their preference for Jueces para la
democracia. See Lisa Hilbink, Politicizing Law to Liberalize Politics: Anti-Francoist Judges and Prosecutors in Spain’s Democratic Transition, in STRUGGLES FOR POLITICAL FREEDOM (Malcom M. Feeley, Terence
C. Halliday & Lucien Karpik eds., Hart forthcoming).
41
This attitude has been strongly supported by an influential legal philosopher, past judge, and
member of Magistratura democratica: LUIGI FERRAJOLI, DIRITTI FONDAMENTALI [FUNDAMENTAL RIGHTS]
(Laterza 2001). A detailed analysis of the evolution of the way the judicial role has been defined in
Italy is in ANTOINE VAUCHEZ, L’INSTITUTION JUDICIAIRE REMOTIVÉE [THE JUDICIAL INSTITUTION REMOTIVATED]
(Librairie Générale de Droit et de Jurisprudence 2004).
42
See art. 2.8 of the 1985 statute of the association.
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possible, to promote the interests of the workers and to fight illegal work,
exploitation of immigrants, and trafficking in human beings.43 More recently,
MEDEL has pointed out the need for the judiciary to “protect [the] most
disadvantaged workers,” make the “general prevail [over the] private” interest, and also to work toward the implementation of social and economic fundamental rights. In this context, it is not surprising that the role of public
prosecutor is considered to be especially significant; as has been authoritatively
argued, she must act in order to defend “democratic legality” and “the equality” of citizens and individuals against all who damage the “diffuse and
collective rights” (for example, environmental and cultural rights). In general
terms, judges and prosecutors must “defend the Rule of Law [État de droit] and
save the Welfare State.”44
Traditionally, progressive judicial groups have been strongly influenced by
the policies of main parties of the left. Therefore, the interests of the working
classes were the main point of reference of judicial actions of these groups. For
example, in the 1970s, Magistratura democratica openly proclaimed its intent
to ally itself with the social and political forces fighting, outside the judicial system, for the “social transformation of the country.” The reference to the parties
of the left—the socialists and, above all, the communists—was clear.45 Today,
that situation has evolved. In Western Europe, the working class has lost its
traditional, presumptive homogeneity, while its living conditions have everywhere more or less improved. Therefore, although workers’ interests remain a
focus of attention, the working class as a whole can no longer be considered a
marginalized group; today, other groups seem more important. The French
Syndicat de la magistrature, for example, is devoting its attention mainly to
four groups: foreigners or immigrants, minors, inmates, and drug addicts.46
Similar groups seem to be the target of progressive judges in Italy; for example,
since 1999, Magistratura democratica has been editing a review devoted to
“Citizenship, Immigration and Law,” in which actual decisions by courts are
analyzed, and interpretations of legal texts are discussed and suggested.
Immigrants, minors, and women are the subjects on which the Spanish Jueces
para la democracia have recently taken a public stand.47 Therefore, it seems
that the defense of immigrants’ rights has become one of the main focuses of
the activity of the judicial left.
43
See the conclusions of the international meeting on “Work, Justice and Equality,” held by
the association in Lisbon, on Jan. 25 and 26, 2002, available at http://medel.bugiweb.com/usr/
ResoLisbonne.pdf.
44
See Marie Anne Swartenbroeckx, Secretary General, MEDEL, Address at the meeting for the XX
anniversary of the foundation of the association, (May 2005), available at http://medel.bugiweb.
com/usr/BordeauxDroitsfondamentaux.pdf.
45
Obviously, this policy was hotly contested by other, more moderate groups inside the judiciary.
46
See http://www.syndicat-magistrature.org (last accessed Nov. 7, 2005).
47
See http://www.juecesdemocracia.es (last accessed Nov. 7, 2005).
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The capacity of the European judiciaries to pursue these policies is rather
substantial and growing. As we have seen, in the second half of the twentieth
century, guarantees of judicial independence have almost everywhere been
reinforced. Judicial review of legislation, although formally entrusted to special
constitutional courts, has helped enlarge judicial creativity even in ordinary
courts,48 and this development has been supported by the actions of European
supranational courts. In addition, although in today’s Europe no system of
criminal justice is patterned on purely inquisitorial lines, Continental criminal
justice is still influenced by the inquisitorial tradition. As a rule, the interest of
the state—represented by the instructing judge and the public prosecutor—
enjoys a somewhat privileged position into the criminal process.49 This fact has
to be seen in light of the increasing independence of the judiciary. Thus, in
France and Spain, independent investigating judges are in charge of most significant cases and prosecutors show an increasing autonomy vis-à-vis the
executive power. In Italy, where the office of the investigating judge was abolished in 1989 with the enactment of an accusatorial code of criminal procedure, the investigation is entrusted to independent public prosecutors. All these
actors enjoy, at the least, de facto substantial margins of discretion and are
usually provided with significant powers, which they can employ in their
investigations. The consequence is that the judiciary cannot be considered
here simply as “the least dangerous branch.”
Progressive judicial groups have played a significant, if indirect, role as well
in the anticorruption investigations that in the last decades have involved the
political class in Europe and especially in Italy, France, and Spain.50 Although
not all judges and prosecutors investigating these cases can be assigned to the
progressive wing of the judiciary, the judicial left has openly and unrelentingly
supported those inquiries. Putting an end to the immunities of the political
class—and therefore investigating all its possible wrongdoings—has been considered one of the main tasks of the judiciary, especially in contexts where the
mechanism of political accountability was not working well. Such situations
have arisen chiefly because of a stalemate at the political level, as in Italy,
where the opposition had no real chance of acceding to power, or because of
the inadequacy of the opposition in supporting the fight against corruption, as
48
In Italy, since the late 1960s, Magistratura democratica has openly encouraged judges to use
incidental proceedings to enforce the Constitution and directly apply constitutional rules. See
GUARNIERI, supra note 27, at 109–110.
49
50
See MIRJAN DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY 156 (Yale Univ. Press 1986).
See Véronique Pujas & Martin Rodhes, Party Finances and Political Scandals in Italy, Spain and
France, 22 W. EUR. POL. 41 (1999); Violaine Roussel, L’independence de la magistrature en France.
L’emergence d’une notion à contenu variable [Judicial Independence in France: The Emergence of a Notion
with a Variable Content], 9 SWISS POL. SCI. REV. 124 (2003); James L. Newell, Americanization and the
Judicialization of Italian Politics, 10 J. MOD. ITAL. STUD. 27 (2005).
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in France and Spain.51 Thus, the judiciary of these countries has come to
reinterpret its countermajoritarian role in a new and much more penetrating
way.
Again in the criminal field, another example of the significance of progressive judicial groups is provided by their unswerving support for the development of a universal criminal jurisdiction.52 The Pinochet case shows the role
they can play in specific circumstances. Although the instructing judge in
charge of the case—the well-known Baltasar Garzón—does not belong to any
group, the Union progresista dos Fiscales performed an important function at
the beginning of the proceeding.53
As for the way courts can intervene on behalf of marginalized groups, the
first, and probably most obvious, is by defending them against harassment on
the part of political majorities. More specifically, this role is especially relevant
when the executive—such as the police—is involved. For example, the French
Syndicat strongly criticized the instructions issued by the minister of justice on
the manner of dealing with the disturbances that erupted in many French
cities in the fall of 2005.54 Throughout the fall of 2005, Jueces para la democracia was fiercely critical of the treatment by the Spanish government of
illegal immigrants in the two Spanish North African enclaves of Ceuta
and Melilla.55 In this way, courts can act while following the traditional role
constitutionalism entrusts to them.
However, this role of guardian of rights can be expanded, mainly in two
ways. First, by enlarging the list of rights the courts are called on to enforce:
from this point of view, the insertion of social and economic provisions into the
list of fundamental rights has obvious consequences; second, by suggesting—
with increasing emphasis—that fundamental rights, since they are fundamental, have to be enjoyed by all individuals, and not only by citizens. Thus,
the legal protection of immigrants emerges strengthened.56 It has been
51
This attitude is well exemplified by the Geneva appeal of 1996, signed by a group of prominent
investigating judges and prosecutors, advocating the creation of a “European judicial space” in
which the fight against corruption could develop across national borders. The trend toward the
“end of immunities” has been analyzed by GARAPON, supra note 29, at 31–34.
52
See ANTOINE GARAPON, DES CRIMES QU’ON NE PEUT NI
NEITHER PUNISHED NOR FORGIVEN] (Odile Jacob 2002).
PUNIR NI PARDONNER
[ABOUT CRIMES WHICH CAN BE
53
Naomi Roht-Arriaza, The Role of International Actors in National Accountability Processes, in THE
POLITICS OF MEMORY 47 (Alexandra Barahona de Brito, Carmen Gonzalez-Enriquez, & Paloma Aguilar eds., Oxford Univ. Press 2004).
54
See Appel aux magistrats à exercer pleinement leur role de garant des libertés fondamentales [Appeal to
the magistrates to fully perform their role as guarantors of fundamental freedoms], available at http://
www.syndicat-magistrature.org (last accessed Nov. 15, 2005).
55
See Bolletin informativo, Nov. 2005, n. 40, p. 4.
56
FERRAJOLI, supra note 41, at 315–317.
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authoritatively affirmed that “every judge can and must act in order to make
rights effective, especially those of the weakest against the economic logic of
exploitation, of oppression, of exclusion . . . it is a priority to . . . elaborate a
jurisprudence promoting freedom and equality in a substantial way.”57 The
globalization of the law should not aim at the protection of property and
market but at effectively protecting the rights of all persons, independently of
the place in which they live.
On the other hand, an analysis of the activity of European judicial groups
shows that they also can act by directly intervening in the political process on
behalf of marginalized groups. I am referring, for example, to the important
role played by Magistratura democratica in supporting legislation broadening
workers’ rights or in resisting laws restricting immigrants’ rights.58 In these
circumstances, the group is not only advocating a more progressive interpretation of legal norms but also supporting reforms of the legal system in order to
sustain minorities’ interests.
4. Conditions affecting the role of the judiciary
as protector of marginalized groups
As a rule, bureaucratic judiciaries tend to be more socially isolated than their
common law counterparts. In fact, one of the aims of bureaucratization is to
sever—or to keep to a minimum—the relationships between the judicial
organization and its environment, chiefly for the purpose of providing the central political power with an effective tool of social control: think of the French
Napoleonic tradition and its distrust of corps intermédiaires. In addition, bureaucratic recruitment, by focusing on general, abstract legal knowledge tends to
allow less (or no) weight to professional experience, the acquisition of which is
often conditioned by class, wealth, or family origins. Therefore, bureaucratic
judiciaries tend to present a more socially—and politically—diversified body.59
Moreover, the national system of recruitment and the fact that often judges
must move from place to place in order to be promoted makes it less likely that
bureaucratic judges will be connected to the local upper classes, thus minimizing the impact of local social influence.
57
See the final declaration of the twenty-fifth congress of Magistratura democratica in Palermo in
May 2005, available at http://www.magistraturademocratica.it/md.php/9/712.
58
Magistratura democratica has played an important role in criticizing the immigration law
enacted in 2002 by the center-right government in Italy (the so-called Bossi-Fini statute) and
asking for a radical change of the immigration policy. Magistratura Democratica has also taken a
public stand against the constitutional reform proposed by the center-right government in 2006.
59
Up to a point: actually middle class origins tend to prevail; lower, to be underrepresented,
although much depends on the way the educational system is organized. See for France and Italy,
CARATTERISTICHE SOCIO-CULTURALI DELLA MAGISTRATURA [SOCIO-CULTURAL CHARACTERS OF THE JUDICIARY]
(Giuseppe Di Federico ed., Cedam 1989).
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Therefore, when the traditional influence of the central political power is
reduced or, in some cases, almost erased, courts can exhibit a higher level of
autonomy relative to the powerful local interests, which at this point can no
longer pressure the central government to influence local courts. Of course,
much will depend on the capacity of these interests to co-opt—or even to
corrupt60—formally independent judges. All in all, however, the conditions for
both radicalization and a positive role for the courts in defending marginalized
groups seem to be more favorable in a bureaucratic context, once judicial
guarantees of independence have been expanded. Moreover, in this process, a
crucial role can be played by the judicial groups and associations, since they
also can provide support for judicial autonomy at the local level.
Apart from the social and political diversity of the judicial corps and
their degree of independence from central or local political power, there are
other conditions supporting the role of courts as protectors of marginalized
groups. First, important support may be provided by the academia, that is, by
law professors, who traditionally enjoy high prestige in civil law countries. The
emergence of a progressive or even radical legal academia—a phenomenon
especially strong in the second half of the twentieth century—is obviously
an element supporting a progressive vision of the judicial role. We should
add that, at least in general terms, lawyers tend to be in favor of judicial
activism, since in this way their influence is expanded. Constitutional courts
have been an additional and important channel in the transmission of progressive attitudes from the academia to the judiciary. As has been pointed out,61
in the last decades a sort of dialogue has developed between ordinary and
constitutional courts, and Continental constitutional courts are, in large measure, composed of prestigious law professors. An Italian lawyer, recently
appointed to the Constitutional Court, has summarized well the task of the
judge in the new political and constitutional environment: judges have to
implement policies devoted to satisfying those interests that are protected
by the fundamental values of the legal system. They should act because of
the inertia or the lack of sensibility of the executive and the legislature.
Their role is to strive toward a never-ending upgrading of the levels of social
and legal protection.62 Given the influence that constitutional courts have
on the decisions of ordinary judges, progressive academia has seen its views
percolate down into the judicial body; for instance, the role played by the
German and French constitutional courts in protecting immigrants’ rights in
60
In fact, an autonomous but bureaucratic judiciary can experience decay in professional
qualifications and organizational identification, opening the way to external and even illicit
influences.
61
62
STONE SWEET, supra note 19, at 114–126.
Gaetano Silvestri, Verso uno ius commune europeo dei diritti fondamentali [Toward a European
Common Law of Fundamental Rights], 26 QUADERNI COSTITUZIONALI 7, 13–16 (2006).
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the last years has been remarkable, coinciding at least partially with the
policies of the progressive wing of the judiciary.63
However, we should remember the relatively ambiguous role of academic
legal ideologies. During the Weimar Republic, for example, a significant
number of academics backed the attempts by the judiciary to sabotage parliamentary reforms and supported the antidemocratic evolution of the political
regime.64 In more general terms, Continental Europe has been substantially
influenced by a species of liberalism characterized by the strong role assigned
to the state. Statist liberalism tends to assume a sort of moral superiority of the
state over society; the state is thought to be looking after the public interest,
while society is the arena where sectional, particularistic interests tend to prevail.65 As a result, this ideology tends to support an activist conception of the
state and of the judiciary and can open the way to authoritarian or paternalistic styles of political power. More recently, the “new constitutionalism,”66 to
the extent that it envisages an expanded role of judicial power, has been
strongly criticized as actually serving to protect powerful established social and
political interests, threatened by the growing political influence of once marginalized groups.67
In a similar way, the rule-of-law ideology—today much in fashion in
academia, as well as in many international organizations (such as the
World Bank)—presents its own degree of ambiguity. Its impact depends on
how this notion is defined and on the actual implications derived in judicial
decisions. As has been pointed out, a first, thin definition of the rule of law is
concentrated on procedural aspects, without considering the content of the
law and, perhaps, even the nature, democratic or not, of the political regime.68
Another, thick, substantive version tends to incorporate a “particular notion
of morality related to economic governance (market economies versus
command economies), regime type (democratic versus single-party socialist
63
See Christian Joppke & Elia Marzal, Courts, The New Constitutionalism and Immigrant Rights: The
Case of the French Conseil Constitutionnel, 43 EUR. J. POL. RES. 823 (2004). Although not formally
connected to the judiciary, the Conseil is influencing ordinary courts by providing quasi-binding
interpretations of statutes.
64
See David Dyzenhaus, Legal Theory in the Collapse of Weimar: Contemporary Lessons?, 91 AM. POL.
SCI. REV. 121 (1997).
65
See ANGELO PANEBIANCO, IL POTERE, LO STATO, LA LIBERTÀ [POWER, STATE, FREEDOM] 165 (Il Mulino 2004).
The relationship between statist liberalism and the activist state is obviously strong. See DAMASKA,
supra note 48, at 80–88.
66
STONE SWEET, supra note 19, at 31.
67
A strong advocate of this position is RAN HIRSCHL, TOWARD JURISTOCRACY (Harvard Univ. Press
2004).
68
Erik G. Jensen, The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional
Patterns and Reformers’ Responses, in BEYOND COMMON KNOWLEDGE 336, 339 (Erik G. Jensen & Thomas
C. Heller eds., Stanford Univ. Press 2003).
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regimes versus neoauthoritarian regimes), and human rights (individual
rights versus communitarian rights versus collectivist rights).”69 The significance of the specific definitions is obvious in practice. Therefore, the extent to
which the rule of law can contribute to advancing the interests of marginalized
groups depends on the way these rights are defined and, above all, on the concrete implications judges decide to derive from them. Today, in Europe, the
judicial and academic left, whose influence seems significant, is striving to
insert as many social and economic rights as possible into the European constitutional heritage. It hopes to legitimize progressive judicial decisions and to
reduce the risk of a conservative backlash, especially on welfare rights. The
extent to which the left will succeed remains to be seen.70
As we have observed in the Italian case, judicial activism gains a lot from
finding allies in the political system. Bureaucratic judiciaries, organizationally,
are rather separated from the legal professions; the recruitment of attorneys
into the corps is rare. Thus, the relationships with the bar are often weak and,
in some cases, even in conflict. In any event, the capacity of these judiciaries to
build up support among influential social groups seems limited.71 Political parties can be an important substitute, especially when the executive is no longer
provided with an effective means of influencing the judiciary or is too weak to
obstruct these relationships. Therefore, an alliance with leftist political parties
can enhance the role of progressive judges, though not without costs, as we
will see below.
Finally, an important role is played by international connections, that is, by
international or transnational organizations supporting judicial activism on
behalf of progressive goals. A good example is the role played by MEDEL in
organizing cultural activity in favor of activist conceptions of the role of the
judges; in supporting local associations in their fight to obtain a strengthened
independence of national judiciaries; and in lobbying international organizations—such as the EU and the Council of Europe—on behalf of judicial interests (enlarging judicial powers, strengthening judicial guarantees of
independence, improving working conditions, and the like).72
69
Id.
70
See Martin Shapiro, Law, Courts and Politics, in INSTITUTIONS & PUBLIC LAW 275, 285–287 (Tom
Ginsburg & Robert A. Kagan eds., Peter Lang 2005). We should note that in the United States
the judicial progressivism of the 1950s and 1960s has been later superseded by more moderate
policies and, today, by a sort of conservative reaction, embodied in President George W. Bush’s
appointments to the Supreme Court.
71
For example, in the United States, the capacity of the Supreme Court to protect rights and civil
liberties has been related to the power and legitimacy built up in the past by the Court as protector
of property rights. See Martin Shapiro, The United States, in THE GLOBAL EXPANSION OF JUDICIAL POWER
43–66 (C. Neal Tate & Torbjörn Vallinder eds., NYU Press 1995).
72
MEDEL is now developing relationships with the Federation of Judges for Democracy of Latin
America and the Caribbean. Other judicial groups play an important role also in the Consultative
Council of the European Judges at the Council of Europe.
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5. Tentative conclusions on the role of courts
in protecting marginalized groups
We have argued that, although it is not possible to make a detailed evaluation
of the impact of their decisions, Continental European judiciaries have played,
at least in some cases, a positive role in protecting the interests of marginalized groups. This sea change can be explained by the radicalization some judiciaries have experienced in the second half of the twentieth century and by a
favorable political and institutional context. In this connection, we have
pointed out the transformations in the constitutional system of these countries, achieved with the introduction of various forms of judicial review of legislation and the strengthening of judicial independence. As for the political
context, progressive judges have profited from the support of influential leftist
parties and groups. Thus, courts have been able to pursue, with some effectiveness, policies on behalf of minorities by stressing the need for a creative
and activist judge. The relative damage to actual and perceived judicial impartiality, which pursuing these policies may entail, has been offset, to some
extent, by the support of the political environment. But, the development of
strong relationships between sectors of the judiciary and sectors of the political class is not without disadvantages. This development implies some form of
judicial politicization by virtue of the fact that judges tend to align themselves
along party lines and politically divisive issues. Still, judicial politicization, in
a context traditionally characterized by a bureaucratic setting that emphasizes the technical, value-free nature of judicial decision making, cannot but
entail some costs. For example, judges tend to enjoy a lower level of support in
those countries where judicial activism seems more developed.73 However, as
we have seen, at least so far, judges have been able to profit from the legitimacy crisis of the political class and to elaborate an ideology stressing the
need for them to act, in order to replace weak and ineffective political
institutions.
In a democracy it is likely that, sooner or later, demands for some form of
political accountability—accountability to the political majorities—will
become stronger. Although the introduction of forms of accountability does
not necessarily imply direct election of judges, an arrangement foreign to the
European judicial tradition, nonetheless judicial independence, and the degree
to which courts may act autonomously, can be curtailed. Much will depend on
the strength of the political majorities, on their capacity for introducing this
sort of reform, and, on the other hand, on the ability of the judiciary to strike
alliances with political groups in order to defend its interests.
73
Data from the Eurobarometer show that in Latin European countries the trust in the judiciary
and the legal system tends systematically to be lower. Data available at http://ec.europa.eu/
public_opinion/index_en.htm.
Guarnieri
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Courts and marginalized groups
209
To sum up: on the basis of the experience of Continental Europe, responsiveness toward marginalized groups seems to be enhanced under the
following circumstances:
•
•
•
•
•
That there is a judicial system providing courts with the capacity for responding to various groups’ demands, broad jurisdiction and relatively easy access
(that is, a substantial possibility of bringing cases to courts), prosecutorial
autonomy, judicial powers in the management of the judicial process, judicial review, and material support (that is, administrative staff);74
That there exists a judiciary whose external and internal independence has
been secured. A lessening of hierarchical controls—and, therefore, an
increase of internal independence—favors the development of judicial activism, especially in the lower courts, whose role is particularly important in
the implementation of policies. Here the role of higher councils seems significant. On the other hand, if dismantling hierarchical controls is not balanced
by other checks on judicial capacity, the risk of a decline in the professional
qualifications of the judiciary is high, with a correspondingly higher risk of
corruption or informal influence by external powerful interests;75
That a socially and politically diversified judiciary exists. A varied judicial
corps is more likely to develop forms of judicial activism supportive of minorities’ interests. Although bureaucratic recruitment can be less reliable in
guaranteeing judicial professional qualifications, it tends to produce relatively more social and political diversity;
That activist judicial groups are present. This is a crucial factor. Judicial
groups can improve the capacity of the judiciary to act more coherently.
Above all, they can play an important role in diffusing progressive judicial
policies among judges and in ensuring their successful implementation;
That strong relationships with political and social groups of progressive
orientation (political parties, unions, and public-interest groups) are developing. A support structure seems to be a necessary condition for successful
judicial action.76 However, in this way the autonomy of the judiciary is,
to some extent, limited. In addition, as we have pointed out, too-close
relationships with politics can damage judicial impartiality or the appearance thereof.
74
The significance of these elements for the expansion of judicial power is analyzed in detail in
GUARNIERI & PEDERZOLI, supra note 2, at 78–149.
75
The inverse relationship between professionalism and susceptibility of judges to corruption
has been argued in Carlo Guarnieri, Professional Qualifications of the Judiciary in Italy, France and
Germany, in TRANSPARENCY INTERNATIONAL, GLOBAL CORRUPTION REPORT 2007 (Cambridge Univ. Press
forthcoming).
76
The point has been emphasized by CHARLES EPP, THE RIGHTS REVOLUTION (Univ. Chicago Press
1998).
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Generally speaking, the European experience seems to confirm that the
more politically and socially autonomous the judiciary is vis-à-vis other
centers of political and social power, the lower the concentration of power in
political system as a whole and, therefore, higher the chances of minorities
finding a positive response to their demands somewhere in the system.