The Judicialization of Politics as a Challenge to Judicial Lawmaking

The judicialization of politics signifies the reliance on courts and judicial means to address core moral predicaments, public policy questions, and political controversies. This process has increased the sphere in which especially highest courts are active. At the same time, judges continuously rely on the tradition of rule based legal interpretation and communication when discharging their newly found function. This classical approach to law disregards its own epistemological limits, the possible divergence between the actual motivation to reach judicial decisions and its written justification as made public, and the difficulty for legal reasoning to mirror and solve fundamental normative disagreement. As a result, the intellectual freedom needed to fulfill the enhanced judicial task is at odds with the restrained legal space in which highest courts operate, in effect bringing about a lawmaking gap. Legislative bodies, on the other hand, are traditionally less restrained in their abilities of rights interpretation. However, the spirit of the time favors judges above representative bodies, making the possibility of an increased legislative involvement in rights interpretation to close the lawmaking gap moot. As such, the classical approach to law in the context of a changing legal system signifies the loss of the logic behind legislative involvement in rights interpretation without that logic resurfacing in a different place of the polity.status: publishe