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Alafiya, IV year of B.A.,LL.B., Chanakya Law University, Patna

For some years now, the law has become increasingly important in our society. It is happening more and more often than judges’ rulings are published by the media, hitting the headlines, and they have a growing influence on the lives of citizens. We have heard people talking about the global expansion of judiciary power to indicate this process, a process which characterizes nearly all countries with democratic regimes, albeit in different ways.

The expansion of judiciary power that we have been looking at happens mainly in democratic countries, in countries that are based above all on the principle that political decisions are made, directly or indirectly, by somebody who is then responsible to the whole political community. The democratic principle is, therefore, one of the fundamental principles of our society. The expansion of judicial power poses a kind of threat, creates tensions, for this kind of political community.

When we talk about the power of the judiciary, we are referring to various things, but two important elements above all.[1]

1. Judiciary power is a form of power exercised by independent judges, i.e. by judges who are not politically responsible or, at least, are not politically responsible like other players are, as members of the government or parliamentarians. So, we are dealing with decision-makers who have no kind of political responsibility, at least not directly.

2. What is more, when we talk about judiciary power, we are referring to a particular prerogative, a specific kind of power that these judges have, and that power is the one whereby they control the constitutionality of any laws, the constitutionality of the legal norms that are passed by other political institutions especially by Parliament.

So, any extension of judiciary power means that independent judges have the power to control how the other institutions work, the ones that are politically in charge. Therefore, this creates a very strong tension between judiciary power and democratic principles, the basic principle of democracy, the one whereby any political decision is always made by the person who is, directly or indirectly, in charge in terms of the political community.

The question arises how is this tension dealt with? There are diverse positions, there is an in-depth discussion, a very long one, a discussion that is still ongoing, about how to make judiciary power compatible with the principles of democracy, even with the principle of representative democracy.[2] So, there is a primary position, which is very influential even today, that says that judges, when they judge, when they make decisions, do this based on pre-existing judicial laws, in other words, they apply the law, they apply the Constitution, and, in this sense, they do not have much in the way of a margin of choice, of discretion.[3]

In other words, they do nothing more than applying the law. This law can be ordinary, can be the Constitution, when we are talking about judiciary control of constitutionality, but there is no sense of discretion in this kind of operation. Judges are machines, are specialized technical staff, experts, who are, maybe, able to extract the truth, the real, the right meaning of law from the legal texts and the texts of the Constitution. Well, this very influential concept is a concept that, unfortunately, is at loggerheads with reality. In other words, the creativity of a judge, the fact that a judge, to a certain extent, can exercise certain discretion, when they identify a law within a text, is a given fact. It is something that the analysis of law, the sociology of law, has long demonstrated to be a feature of the law, a characteristic of judicial activity.[4]

Right then, given that a judge has this kind of power, to what extent can this power be made compatible with democratic principles? Here, too, various answers take this discretion into account, this ability on the part of judges to act independently regardless of the text, but they justify it, they justify their position of independence. Therefore, there is a political decision underlying judicial power. Thus, the tension between judiciary power and democracy is a tension that derives from a democratic decision.

What is more, some people also say that, in reality, judges, even the judges at the Constitutional Court, or maybe especially Constitutional Court judges and Supreme Court judges, because of how they are selected, in which they are nominated, it is unlikely that they are very distant from the views and opinions of the political community. In other words, rarely, judges are completely outside the political culture of the country in which they operate.

The traditional deliberations on the democratic acceptability regarding the independence of the judiciary have been revived with the judicialization of politics. There is little question that the development of judicial authority should be viewed as a radical change, as it will strengthen the security of human rights and, to some degree, the obligation of public authorities. However, it raises an important question regarding the possibility of such an expansion taking place without the alteration of the equilibrium of the political system and also, if it gives leeway for a conflict with the two key principles of constitutional democracy, the protection of citizens’ rights and popular sovereignty.

The expansion of judicial power can be considered the by-product of specific decisions, taken by democratically responsible bodies, for instance, when they decide to introduce constitutional review. Thus, the fact that judicial decisions can go against the will of political majorities is inherent in the institutional template of constitutionalism, it seems to be an inevitable price to pay.

Regardless of the current scenario, it is less probable that the political branches will keep its distance from the judiciary for a considerable time. Provided that the courts turn out to be politically influenced, politicians begin to exercise their authority on them through judicial appointments, particularly to the highest of the courts, jurisdictional reforms such as getting rid of cases from courts which are politically important or by manipulating the judicial professions through the supremacy of the ministry of justice or a politically prejudiced judicial council. Nevertheless, in the short run, the political character of the judiciary has become a substantial trait which is likely to remain in contrast to the success of political influence on the judges being achievable in the longer run.

[1].The Global Expansion of Judicial Power13 (C. N. Tate& T. Vallindereds., New York University Press) (1995).

[2]Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279 (1957).

[3]Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 American Pol. Sci. Rev., 853-864 (1962).

[4]StephenGardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies? 53Columbia J. of Trans. L., 285-320(2015).


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