10 - The preference for judgment

Summary

The judicialization of politics

Slippage from the political to the penal is one of the most thoroughly discussed and analyzed aspects of contemporary democracy. Some scholars even speak of a “judicialization of politics.” There are many reasons why this is so. Of these, the most noteworthy is surely a change in the nature of political accountability. The phenomenon is complex and multifaceted, and many different factors are involved, but two broad areas deserve closer attention. The first has to do with the nature of political institutions. The application of criminal law to public life has been particularly noticeable in countries with fragile, unstable political systems, as well as countries where institutional contradictions have made it difficult to exercise political responsibility in a transparent manner. In Europe, Italy is the paradigmatic example: Italian judges have exercised political power because the political system has been unable to regulate itself and meet the expectations of society. France, for its part, has suffered from certain constitutional deficiencies. The difficulty of organizing the “dyarchy” at the summit of the state – the prime minister and the president of the Republic – has created a situation in which the president is, in practical terms, unaccountable. Furthermore, the relative weakness of the French Parliament has left the president free of the checks and balances that exist elsewhere. The flaws in the constitution of the Fifth Republic have thus accelerated changes that have affected democracies everywhere.