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The theme of political role of judges is an old one in the literature of democratic countries. Indeed, Alexis de Tocqueville already tackled the political importance of the courts in his famous Democracy in America (1835). The reason is that there is inevitably, in modern democracies, an area where law and policy will intersect (Doyle, 1998:104). Most of judges only interpret the law in order to apply it to concrete cases brought to us, and if in this process the law is subject to changes, those are minor. It goes differently for constitutional judges which are in charge of checking the conformity of the law to the Constitution and thus of its interpretation.
Their decisions have major political implications, and it is not rare that they break down an act of legislation. As a consequence, constitutional judges are often qualified as undue policy-makers, to the extent that they are not elected representatives of the people. To what extent can the interpretation of the Constitution be considered as making policy, and what are the implications if it is the case?
The thesis defended here is that judges can be described as policy-makers in the sense that they have to take decisions on political issues and with political consequences, but that they are not truly political actors because their methods to take decisions and behaviors are proper to the Judiciary. Moreover, this increased political power is not undemocratic because it is needed. In order to demonstrate these points, I will first look at the inherent hybrid nature of constitutional courts, both judicial and political, with a growing importance of the political role over the judicial one. Then I will move on to the implications of this evolution, wondering if it should be considered as undemocratic.
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