Judicialisation Flashcards
What is the judicialization of politics
The increasing use of the judiciary and judicial practices to address moral predicaments and political controversies
Can be used to veto laws
Can verify questions regarding health policy, disarmament stem cell research etc
How is judicialization most commonly used
Laws are deemed unconstitutional
What does judicialization require
Constitution supremacy
Judges involved in policy making rather than leaving it to politicians and administrators
What did Arante’s say regarding judicialization in Brazil
The demand for the justice that was oppressed during authoritarianism flooded the judiciary after constraints ended
The new democracy required legitimate judges to decide conflicts between society and the government and between branches
What factors led to judicialization in Brazil
Democratisation in 1985 and the creation of the constitution in 1988
Increasing interest groups demanding judicial solutions to conflicts
Opposition use the judiciary to fight government policies
Constitution delegates to the judiciary and public ministry the task of protecting individual rights and interests and collective and social rights
What conditions facilitated judicialization in Brazil according to verbicaro
1988 constitution Universalisation of access to justice Interpretable constitution Expansion of space reserved for the Supreme Court Increase in size of the legislative Unstable parliament
What policies have judges influenced in Brazil
Consumer defence code
Statute of the child and the adolescents
How have judges helped lgbt rights in Brazil
2011 same sex marriage legalised - passed by 10-0 vote - a abstained due to earlier stated views
2018 ruled transgender people could change their legal gender without surgery, hormone replacement therapy or a medical diagnosis
2018 Removed a state law preventing gender and sexuality classes in school
2019 currently in proceedings to criminalise transphobia and homophobia
What did Maues and Leitao say about judicialization
Laws and acts being deemed unconstitutional are not attempts to disrespect the rule of the majority but actions in defence of the constitution
Limits possible violations of the constitution
What are the two biggest criticisms of judicial activism according to Chevallier
Anti majoritarian character of the judges - unelected and not legitimate to make new laws
Unestablished criteria regarding new laws made through court cases
What arguments did Wolfe give in defence to judicial activism
Judges should decide cases not avoid them and use their power to expand justice and liberties
Not ignoring the constitution but interpreting it their own way which is necessary to make rulings
Why did Whittington believe elected politicians tolerated an active judiciary
When they cannot implement their own agenda they foster an active constitutional review by a sympathetic judge to overcome the barriers and break through the status quo
How did vianna criticise direct unconstitutional actions (ADI)
Used by governments as well as minorities
60% of ADIs proposed between 1988 and 2005 were about public administration issues and 12.6% were about tax policies
Among the ADI laws proposed by governors 87% against state laws
Shows state governors when unsuccessful in the political arena use the judiciary to guarantee their claim
What are the disadvantages of judicialization for democracy
Judicial independence
- autonomy and separation of powers
- implications- cases in which the judiciary is both politicised and lacks independence and autonomy is detrimental to democracy
How is Venezuela an example of the lack of judicial independence when considering judicialization
The autonomy and effectiveness of the judiciary as a check on the regime has been compromised
The government has purged yeh judiciary of judges it deems hostile to its aims while packing the Supreme Court with loyalist judges, making it a political instrument to support the regime
The judiciary has become a major impediment to democracy as it stifles opposition by arresting or banning leaders from the democratic process and even temporarily stripped the opposition controlled National Assembly of its legislative powers in 2017
What are the advantages of the judicialization of politics for democracy
Safeguards citizens rights - important equalising mechanisms for rights for groups and individuals without access to political power or representation - especially important for new democracies after long authoritarian regimes
Transitional justice - increased accountability
Checks and balances- strong judiciary can investigate and try politicians- increases citizens ability to hold government to account
How is Costa Rica an example of how judicialization can benefit democracy
Judicialization following the new constitutional courts creation in 1989 has allowed marginalised and persecuted groups to peruse legal changes through the judiciary
Makes the legal system accessible to individuals
Cases filed by HIV/AIDS sufferers led to guaranteed start funded treatment
2018 Supreme Court riling legalised same sex marriage
What are general disadvantages of the judicialization of politics
Deterioration of public security- due process interfering with important policy measures leading to Inability to combat criminal networks and creating public support for draconian policies - rise of Bolsonaro
Judiciary doesn’t represent entire population
Politicises the judiciary and causes contention with their role as impartial arbiters of the rule of law and constitutional rights - increases scope for distrust which delegitimises due process
Who stated that The demand for the justice that was oppressed during authoritarianism flooded the judiciary after constraints ended
The new democracy required legitimate judges to decide conflicts between society and the government and between branches
Arante
Who said that Laws and acts being deemed unconstitutional are not attempts to disrespect the rule of the majority but actions in defence of the constitution
Limits possible violations of the constitution
Maues and leitao
Who defend judicial activism
Wolfe
Who spoke about politicians tolerating an active judiciary
Whittington
Who criticised direct constitutional action
Vianna
Who spoke about criticisms of judicial activism
Chevallier
Who spoke about conditions facilitating the judicialization of politics in Brazil
Verbicaro
