This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers.

This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes.

Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.

chapter |18 pages


part 1|1 pages

Courts and democracy

chapter 2|24 pages

Disempowering courts

The interrelationship between courts and politics in contemporary legal orders or the manifold ways of attacking judicial independence

part 2|1 pages

Courts and their relationship with legislative and executive power

chapter 3|12 pages

Courts and legislation

Do legislators and judges speak the same language?

chapter 4|15 pages

Text, values, and interpretation

The role of judges and legislative power in private law

chapter 6|19 pages

From separation of powers to superiority of rights*

The Italian Constitutional Court and end-of-life decisions (the Cappato case)

part 3|1 pages

Courts, constitution-making, and the separation between constituent and constituted powers

chapter 7|27 pages

The negative legislator

On Kelsen’s idea of a constitutional court

chapter 9|14 pages

Courts in the constitution-making process

Paradoxes and justifications

chapter 10|19 pages

The least dangerous branch?

Constitutional review of constitutional amendments in Europe

part 4|1 pages

The role of courts in the context of democratic backsliding, illiberal democracies and populist constitutionalism

chapter 11|19 pages

Constitutional courts in the context of constitutional regression

Some comparative remarks

chapter 12|19 pages

The use of the EU infringement procedures to protect de facto the rule of law via the development of the parameter

From obligations under the Treaties to the Charter of Fundamental Rights