Judicialization and Democracy an Issue Term Paper

Excerpt from Term Paper :

(Stivachtis, 2007, pp. 127 -- 139)

However, the opponents will argue that establishment of the ECJ and increasing reliance on them to settle various disputes, is leading to instability in the different democracies. This is because, the courts are not respecting the traditions, customs, laws and power within each of the member states. Where, the court will unilaterally make rulings on what is best for everyone, based upon a treaty they signed. In some situations, the provisions of the treaty could hurt the citizens of the country who are feeling the negative economic effects of the court's decisions. This is problematic, because if such conditions are allowed to continue it could cause resentment about outsiders interfering in a country's internal affairs. Once this takes place, it is only a mater of time until this political discontent places pressure on the different democracies. As an increasing number of citizens, do not want to the government to abide by ECJ decisions. This promotes political instability, as the citizens will elect politicians that will not follow the standards in the ECT treaty (essentially making the ECJ nothing more than a legal League of Nations). At which point, the different nations could drop out of the EU, which would lead to more political / economic rivalries. Using the case of Reyners vs. Belgium, many opponents argue that forcing the Belgian government to reverse such a law is becoming involved with their internal affairs. In this situation, such a law could have been established to promote the stability of the Belgian legal system, which embraces traditions and customs going back hundreds of years. However, because the court took a one size fits all approach, means that many in the Belgian legal community would be forced to abandon their legal traditions because the ECJ thinks they should. This is essentially the ECJ writing law from the bench. This can lead to instability where many in the legal community could pressure politicians to not abide by such decisions, if there are long-term negative ramifications. As a result, the overall stability of the democracy could be brought into to question as the citizens and governments stop listening to the ECJ. Once this takes place, a country could drop out of the EU (which may lead to other nations dropping out). This will lead to a regression back to the political model that was in place before World War II. (Stivachtis, 2007, pp. 127 -- 139)

Clearly, judicalization is drawing heated debate from both proponents and opponents of such a system. With the proponents arguing, that the establishment of a court that can regulate trade and settle disputes, will promote stable democracies. This is because both citizens and the government have a remedy for effectively sorting out these issues. Over the course of time, this promotes the rule of law, which causes a shift in perceptions as to the most appropriate legal / economic standards. At which point, the standard of living in the democracies will improve, as everyone reaps the economic / political benefits of integration. However, the opponents argue that the increasing reliance on the judicial system to settle disputes, is effectively leading to judges writing laws from the bench. This is because they take a one size fits all approach to their rulings. When this happens, it could have an effect on the people in various areas, as these ruling could be seen as unfair. Once this takes place, it will cause people to pressure the government to ignore such decisions, which can lead to uncertainty as a political / legal crisis unfolds. In the literature Judicialization: The Key to European Unification and Expansion, these views are highlighted in relation to the ECJ. Where, various court rulings are reshaping the economic / legal / political landscape. This is significant because the rulings will set a precedent, as to how the rule of law will be applied in the future, throughout the different member states. Over the course, of time these ruling will cause a fundamental shift in the way the citizens / government interact with one another. It is through examining the different ideas present on the issue of judicialization, that will highlight the strengths and weakness that it can provide to the modern day…

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