Disempowering Courts. The Interrelationship of Courts and Politics in Contemporary Legal Orders or the Manifold Ways of Attacking Judicial Independence
Martin Belov (ed.), Courts, Politics and Constitutional Law (2019) Routledge Publishing, 31–54
26 Pages Posted: 6 Oct 2021
Date Written: October 28, 2019
Constitutional Courts are under attack these days. To understand the developments of the last years, the paper analysis the rise of courts in contemporary legal orders as a first. The legal power as well as the political influence of courts increased significantly in the last 30 years. Based on these developments, the scholarly debate focused on questions of the interrelation between the legislator and the judiciary. In the meantime, we can, however, observe the rise of the executive, which re-gains power and affects the role of the courts (as well as other actors). The consequences especially in the context of neo-authoritarianism and nationalism are an attack on courts in manifold ways. The paper identifies and structures these strategies of disempowerment of courts. This includes increasing institutional influence on courts, personal pressure on judges as well as procedural changes, which create possibilities of control and limitation of courts. In conclusion of these developments, an erosion of the rule of law can be identified. Finally, strategies are developed by the paper, how courts in transnational networks could support each other and how civil society can strengthen the importance and the resilience of independent courts.
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