The Role of Judges in Political Struggles
18 Pages Posted: 23 May 2012
Date Written: May 22, 2012
The study of judicial behaviour has become increasingly important in the last decades, especially due to the progressive judicialization of the most fundamental political dilemmas in modern democracies. However, some traditional legalistic conceptions still assert that knowledge of judicial decision-making is exclusively linked to the study of positive law, and consider judges “as a unique body of impervious legal technicians above and beyond the political struggle”. In this essay, the importance of studies on judicial behaviour will be highlighted, and it will be argued that the traditional assertion that judges are ‘above and beyond’ the political struggle is fundamentally flawed. In so arguing, special attention will be paid, firstly, to the main approaches to empirical judicial studies. Secondly, a brief account of how the nature and structure of the various dissimilar judicial systems affect the political significance of courts and judicial decisions in different legal systems will be provided. Lastly, three cases concerning judicial intervention in core political quandaries in different jurisdictions will be examined (Bush v. Gore, the Binyam Mohamed case, and the Berlusconi case); in order to analyse whether in deciding such prominent political dilemmas the judges positioned themselves ‘above and beyond’, ‘below and within’, or at some point in the middle of, the political struggle.
Keywords: Judicial Studies, Constitutional Law, Comparative Law
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