Judicialization and Democracy an Issue

Judicialization and Democracy

An issue that is increasingly being brought to the forefront is the use of the judicial system to settle various disputes (judicialization). In the modern day democracy the use of such a system is the foundation for promoting stability. With many proponents arguing that having an effective court system in place, which can handle various disputes, will promote the rule of law. While, the opponents of such a system will argue, that when there is a heavy reliance on the courts, you will begin to see them write laws from the bench. Over the course of time, this will allow for the judicial system to be able to effectively change democracy based on their rulings. This, the opponents argue, is the opposite of democracy, where a select group of judges will determine what is best for everyone. To fully understand both points-of-view, requires a careful examination of the use of such a system in the European Union (EU). This will be accomplished by examining the ideas presented in Judicialization: The Key to European Unification and Expansion. These ideas, will then be compared to the viewpoints from both side on this issue, to provide the greatest insights as to the role that judicialization plays in the modern day democracy.

Throughout the history of Europe, various disputes among nations have led to series of different wars. As a result, there were many different calls to create some kind of judicial system to handle these various disputes. However, it was not until the end of World War II that Europe began to change, as new way of handling matters between member states was examined. As a result, in 1951 the European Coal and Steel Commission was formed. This was the first organization that would provide the basic foundation for the European Court of Justice (ECJ). Their objective was, "Establishing a common market and an economic and monetary union to promote throughout the Community a harmonious, balanced and sustainable development of economic activities." (Stivachtis, 2007, pp. 127 -- 139) These principals would lead to the establishment of the European Community Treaty (ECT). This treaty would create the ECJ to enforce the various provisions to include: the prohibition of all trade barriers, improving economic / social cohesion, creating common commercial standards, allowing for free movement (this includes everything from goods to people), monitor / regulate the economy and work with NGOs / foreign governments to improve trade. These different principals gave increased power to the ECJ over various member states. With proponents arguing, that the use of such a system will promote democracy by eliminating the biggest issue that has contributed to many European wars, trade. This is significant, because having a court that can effectively enforce and listen to various trade disputes, allows member states to be able to have a way to seek remedies, without having to resort to the use of force. Over the course of time, these different rulings and laws will establish a common standard that benefits all members. This promotes stability, by effectively punishing those who are in violation of treaty. Once this takes place, a new set of social and psychological norms are learned by the governments / citizens, as they begin to accept the rulings as laws. These different rulings, creates a cohesive standard that supports stable economic growth, which in turn fuels a stable democracy. An example of this influence can be seen in the case, Reyners vs. Belgium. In this case, a Dutch lawyer wanted to move to Belgium and begin practicing law. The problem was: that Belgian law said that you must be a citizen of Belgium to practice law. The ECJ sided with the plaintiff, claiming that the ECT requires the free movement of people. The Belgian law is violation of the treaty. (Stivachtis, 2007, pp. 127 -- 139) This is significant, because it shows how the ECJ is reshaping the different democracies to one single judicial standard. Over the course time, these rulings will create a single market for all of the different countries that are governed by one standard. This, the proponents claim, is promoting stable democracies, because such disputes are handled by the judicial system. Where, new legal precedents are created, eliminating the conditions that lead to instability. (Stivachtis, 2007, pp. 127 -- 139)

However, the opponents will argue that establishment of the ECJ and increasing reliance on them to settle various disputes, is leading to instability in the different democracies. This is because, the courts are not respecting the traditions, customs, laws and power within each of the member states. Where, the court will unilaterally make rulings on what is best for everyone, based upon a treaty they signed. In some situations, the provisions of the treaty could hurt the citizens of the country who are feeling the negative economic effects of the court's decisions. This is problematic, because if such conditions are allowed to continue it could cause resentment about outsiders interfering in a country's internal affairs. Once this takes place, it is only a mater of time until this political discontent places pressure on the different democracies. As an increasing number of citizens, do not want to the government to abide by ECJ decisions. This promotes political instability, as the citizens will elect politicians that will not follow the standards in the ECT treaty (essentially making the ECJ nothing more than a legal League of Nations). At which point, the different nations could drop out of the EU, which would lead to more political / economic rivalries. Using the case of Reyners vs. Belgium, many opponents argue that forcing the Belgian government to reverse such a law is becoming involved with their internal affairs. In this situation, such a law could have been established to promote the stability of the Belgian legal system, which embraces traditions and customs going back hundreds of years. However, because the court took a one size fits all approach, means that many in the Belgian legal community would be forced to abandon their legal traditions because the ECJ thinks they should. This is essentially the ECJ writing law from the bench. This can lead to instability where many in the legal community could pressure politicians to not abide by such decisions, if there are long-term negative ramifications. As a result, the overall stability of the democracy could be brought into to question as the citizens and governments stop listening to the ECJ. Once this takes place, a country could drop out of the EU (which may lead to other nations dropping out). This will lead to a regression back to the political model that was in place before World War II. (Stivachtis, 2007, pp. 127 -- 139)