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Abstract
The past few decades have seen a general expansion of the power of courts. Judges have begun to play an increasingly significant role in the policy process of most democratic regimes. Even in Europe, where judges were once considered to be politically passive, this development has emerged, strongly supported by institutional reforms introducing forms of constitutional review and stronger guarantees of judicial independence. However, the reforms implemented so far have not always met initial expectations. They have been often implemented without taking into account all their organisational implications. In fact, stronger judicial independence calls for increased selectivity in the recruitment of judges.
ACKNOWLEDGEMENTS
The author thanks Richard Bellamy, Cristina Parau and two anonymous reviewers for their detailed comments. Any remaining errors are the author's responsibility.
Notes
1. For the reasons spelled out later in the text, here we are concerned mainly with the countries belonging to the European Union.
2. The appellate courts that claimed to be the guardians of the Kingdom's fundamental rules and that played a reactionary role in the last decades of the French ancien régime, being ‘among the bitterest enemies of even the slightest liberal reform’ (Cappelletti Citation1989: 125).
3. 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 Citation1989: 142–6), a trend most noticeable in Southern Europe.
4. In Europe, today only Belarus is not a member of the Council of Europe, although in some non-EU countries—like Russia—the status of judges does not seem in fact well guaranteed (Seibert-Fohr Citation2012a).
5. For instance, in the UK the constitutional reform of 2005 was in part a response to the objections by the ECtHR on the role of the Lord Chancellor (Seibert-Fohr Citation2012b: 1312–15).
6. As in the case of the so-called ‘façade constitutions’ (Loewenstein Citation1957: 147ff.).
7. And more recently by Ferejohn and Kramer (Citation2002).
8. In these countries lustration is not always a feasible option.
9. That is, a propensity to adopt decisions protecting the interests of the judicial corps, also at the expense of those of the general public.
10. In fact, some courts try to influence public opinion through a strategic interaction with the media (Coman and Piana Citation2010; Staton Citation2000).
11. In this case, much depends on the degree of political fragmentation. A fragmented polity is likely to reproduce itself inside the council, strengthening the power of the judicial component.
12. See, for instance, the budget implication of judicial rulings—both at the EU and national levels—in public health cases (Greer and Rauscher Citation2011).
13. But the instructing judge is still at work in several important countries like France and Spain.
14. See the Recommendation—Rec (2000)19—on ‘the role of public prosecution in the criminal justice system’ as well as the joint opinion, issued in 2009 by the CCJE and the CCPE, on ‘judges and prosecutors in a democratic society’.
15. For instance, in Portugal and Spain judges and prosecutors are recruited together. Also the initial training is done at the same institution.
Additional information
Carlo Guarnieri has been, since 1990, Professor of Political Science at the University of Bologna. He taught also at the University of Calabria, the High School of Public Administration in Rome, the University of California, Berkeley, the Institut d'Etudes Politiques in Paris and the University of Montpellier. He was Dean of the Faculty of Political Sciences (1997–2000) and Head of the study programme in Political Sciences (2001–07). He was also member of the editorial committee of the Rivista italiana di scienza politica (1980–2000). Presently, he is a member of the teaching committee of the PhD programme in Political Science and of the executive committee of the Italian Society of Political Science. He is the author, in English, of The Power of Judges (Oxford University Press, 2002 (with P. Pederzoli)).