Judicial policy-making and independence in continental Europe: the rise of courts’ activism

INTRODUCTIONAn extensive literature discusses the reasons behind the increased political significance of courts – the so-called judicialisation of politics – a phenomenon that in recent decades has also affected continental Europe. This chapter assesses some factors that support this evolution, with reference to Latin countries (France, Italy, and Spain). First, it considers the traditional setting of the judiciary and depicts the major reforms that have enhanced the independence of judges within the court system and vis-à-vis the other branches of government. Attention is also paid to the expansion of constitutional justice, both at the national and supranational levels, that has opened additional ways for domestic courts to assert their autonomy, at least if they are willing to do so. Second, an under-explored factor is introduced: the role of judicial associations, which stand today as prominent actors in the reformed governance of the judiciary. Their relevance is also due to the fact that some of these organised groups do contribute to elaborating and diffusing more activist conceptions of the judicial role, thus moving away from the classic view of the judge as ‘the mouth of the law’. Finally, a recent case study of judicial policy making in a crucial field is offered. By comparing how asylum demands are adjudicated in Italy and France, the chapter highlights the interactions between judicial settings and role conceptions.