Courts and Marginalized Groups: Perspectives from Continental Europe

Until the middle of the twentieth century, continental European judiciaries were considered a pillar of established order. Today, the situation has changed: the submission of the judge to political majorities is declining. Judicial review of legislation has been introduced and judicial independence strengthened. These institutional changes have supported the development of judicial activism. Organized judicial groups have emerged—especially in France, Italy and Spain—advocating a progressive jurisprudence and developing policies aiming at defending minorities and marginalized groups. The judiciary, traditionally considered a conservative organization, now seems to be willing to carry out progressive policies. In this context, responsiveness toward marginalized groups is enhanced by: a judicial system providing courts with the resources to respond to their demands; a judiciary whose external and internal independence has been secured; a socially and politically diversified judicial corps; the emergence of activist groups; and the development of relationships with progressive political and social groups. Generally speaking, the more autonomous the judiciary from centers of political and social power, the higher the chances of minorities getting a response.