From Democracy to Juristocracy

Law & Society Review, Sep 2004 by Goldstein, Leslie Friedman

Alec Stone Sweet's Explanation

The Sweet book takes up five cases for analysis: Germany, France, Italy, Spain, and the European Community (Union). His goal is to develop a scientific, general theory of how constitutional courts function in democratic polities, and his interest in being scientific (along with the fact that Oxford Press did not impose on him as strong a copyeditor as they might have) produces a certain inelegance of writing style that makes his book (particularly in his first chapter, which explains his general theory of judging, and which I found most off-putting for jargon-like style) a bit harder to get through than the other two.8 But it is worth the effort.

His basic conclusions are that a new set of norms, summarized by the phrase modern constitutionalism, is effectively replacing the older ideology of parliamentary sovereignty in Europe and is doing so in a self-reinforcing, self-strengthening feedback loop that is bringing about the judicialization of politics in two senses of the word. First, far more than previously, policy is being decided by constitutional courts in Europe, which have been strengthened by the adoption of comprehensive rights lists in constitutions and by courts' enhancement of their own powers by novel interpretations of laws and constitutions that expand judicial power. If imaginable, European constitutional courts have the capacity to dominate policy even more than in the United States because European bills of rights are so extensive. They often contain statements of positive (as well as negative) rights-such as the right to work, to adequate pay, to adequate housing, to leisure and vacations, to human dignity, and to old age pensions (as well as freedoms of speech, religion, privacy, etc.) (Sweet lists them all at 42-43). Obviously, such extensive lists of rights will require balancing by someone, and if courts end up as the decider of last resort, they increasingly will adopt rules such as balancing or proportionality tests, or what Sweet calls "least means tests" (97-99). This is an elliptical reference to rules of the sort that say (hypothetically), "A law against direct incitement to mass murder of an ethnic group can be upheld only if it is the least drastic means available for securing the safety of the group in question; it may interfere with freedom of speech no more drastically than necessary for attaining the valid goal." Obviously, when a legislature enacts a bill, it has thereby selected its preferred version of the balancing of the competing interests at stake. When a constitutional court steps in to substitute its own balance as more proportional or as a less drastic interference with protected freedom, it is performing a legislative (i.e., rule-making) function, dressed up in the forms of judging.

This invitation to judges to legislate that is generated by the lengthy rights lists in European constitutions is rendered even more insistent by the format of constitutional review of the continental system. All four countries examined by Sweet have constitutional courts specially designated to review the constitutionality of enacted legislation a priori, or as an abstract question before it becomes official law, if so requested by a sizable legislative minority. In France, this is 60 deputies (out of 577) or 60 senators (out of 321); in Germany, one-third of the population-based legislative house or the government of a Länder (state) government; in Italy, a regional government (or national government against state legislation); and in Spain, 50 deputies (out of 350) or 50 senators (out of 259). All of these except France also allow individuals to challenge the law later, once it has been applied, using U.S.-style "concrete" judicial review. In France, such concrete review occurs only in the context of challenges to laws as violating the transnational law of the EU or of the European Court of Human Rights (hereafter, "Eurolaw"), a practice that came into being by practice rather than explicit constitutional mandate, although the French constitution was explicitly amended to permit ratification of the Treaty of Maastricht of the EU.