Europe’s post democracy?

Abstract

David Jacobson T he rift be tween the United States and Western Europe over the International Criminal Court is symptomatic of a more deep-seated division over the future of the nation-state and democracy. The European Union in containing the nation-state has also diminished the democrat ic process, and in its place p romoted what can be called"judicialism."Judicialism is more about postnational rights than citizenship, and more about regulations arbitrated by judges and administrators for the public welfare than an expression of popular self-rule.This judicialist phenomenon cuts across the democrat ic world but is most marked in Europe, and it is causing internal rifts there as in the recent shift to the Right. It also increasingly shapes Europe's approach to international affairs. For some thirty years now a silent but veritable revolution has been taking place, that of a stunningly expanded judiciary, with more laws, more courts, more rules, greater caseload, more regulations, and more administrative and adjudicating bodies (in the private as well as the public sector).What's more, we have more courts that reach across borders -na t iona l judges invoking universal jurisdiction or international law and, more strikingly, courts like the European Court of Justice and the European Court of Human Rights.The European Union itself is primarily a judicial, administrative and regulative mechanism, and in this r e s p e c t E u r o p e has led the c h a r g e o f "judicialization 7 The expansion of the judiciary and judicial-like bod ies commi t t ees and administrators that arbitrate over issues from asylum applications to complaints of gender discrimination--changes the very purpose of government. Democracy or, more precisely, republicanism, is about, at heart, the collective determinat ion of who "we the people" are, about a sense of shared mores, destiny and purpose. It is reflected in the political process voting, civic engagement, and in the legislative and executive branches of government , which are accountable to the w)ters. In such a republic, judicial review has been limited to ensuring rights that were essential to the functioning of democracy, and that the republican character of the nation was served. But an expanding judiciary in recent decades, especially in Europe, has jumped over such cons t i tu t ional or par l iamentary restraints (while, not eoincidentally, hurdling over national juridical boundaries at the same time). While there has been much debate in the United States in the last couple of decades about "activist" judges or how closely judges should hew to the Constitution, judicialism is a qualitatively different from judicial activism, if a related phen o m e n o n . No mat te r h o w activist individual judges or courts in the United States may have become, they have largely ( though not entirely) l imited themselves to the jur isdic t ional constraints of the Constitution. As such, the U.S.courts have not challenged the basic system off'checks and balances" of the Constitution, or viewed themselves as anything but one of the branches of government of a self-contained,American nation. When courts and administrative or regulative bodies view themselves, as is increasingly the case in Europe, as not subordinate to national concerns, but as representing a distinct set of supranational or transnational concerns (such as, notably, international human rights law) then we have a shift by judicial and administrative bodies from the "checks-and-balances" of republican government to a compet ing form of governance.This is not to say that organizationally such judicial bodies are separate from states, or that judges or similar administrators are hostile to states ( though they may be). Rather, certain courts view themselves as representing certain universal and ineluctable prin-