The relationship between law and politics from Niklas Luhmann’s perspective: Parameters for judicial activism

Abstract

One of the major challenges faced by the Law in modern societies is the lack of effectiveness on decision making, stemmed from an ill-fated lawfulness crisis. The legislative infl ation combined with the law’s ineffectiveness contributes to the lack of trustworthiness of constituted powers, particularly of Executive and Legislative House, based on a perception of State actions legitimacy towards its citizens. Within this context, the Judiciary arises as the leading actor in moral, social and political quarrels regarding conflicting matters, with a shift of power around deliberation in the political majority stake, whose players are democratically chosen, for the judges. In this way, several affairs of utmost relevance to the completion of Human Rights are being decided on the sphere of such Courts, particularly the Supreme Court, in lieu of the appropriate political instances, like the Houses of Lords and Commons and the Government. While, in one hand, it is perceived the strengthening of the Judiciary, on the other hand, it is required to establish patterns to the practice of jurisdictional rendering and to the reading of juridical norms related to the materialization of essential rights, in which one can usually ascertain, damages due to the inertia of Public Administration to fulfill and comply with the prescriptive provisions or, with the intentional negligence on legislating around polemic matters, to avoid the strain, as observed in the case of therapeutic frontloading of anencephalic fetuses’ labour or same sex marriage. Therefore, we do intend, via Niklas Luhmann’s The System Theory, establish the existing connections between the Law and Politics, in order to outline patterns to the judicial empowerment, which legitimates the judicial decisions on the area of Fundamental Rights’ substantiation.

Keywords: social systems, “judicialization” of politics, judicial activism.