Ever since the 1980s, political science and constitutional theory continually observe the social phenomenon of judicialization of politics, wherein courts substitute the decision-making of deliberative, political bodies. Judicialization is often described as a multifaceted process, by which decision makers subject to judicial review (most common of those being legislatures) either integrate judicial ways of thinking, or argument solving into their own into an effort to try and curtail the potential of judicial ingression, or pass certain, often unpopular decision onto the courts. The proposed paper is based on the premise that the mechanisms described in the literature coming from different fields can be useful to understand the current-day reality of public administration.
The main hypothesis of the proposed paper could be summed up in the statement “it is possible to observe the mechanisms of judicialization in the current-day relationship between public administration and the courts.” There are numerous reasons as to why I believe this hypothesis is sound. One of the above-described mechanisms of judicialization is a kind of calculation of the decision-making body with the potential of judicial oversight and the resulting integration of known judicial opinions into the final decision. When transmuted to the reality of public administration, this reflects the common practice of basing the legal opinions of administrative bodies on the case-law of administrative courts. The reasons for this practice can be assumed to be fairly similar to the reasons described by the relevant literature on the judicialization of politics; chief amongst these being prudency related to the desire not the have a decision quashed by a court after it has been issued. There are other reasons why I believe the hypothesis to be sound, one of them being based on logic: The subjection of public administration to the oversight of independent courts (or court-like bodies) is often understood as a necessary part of a democratic system. In contrast to judicial oversight of legislatures, often understood as a means of last resort, the control exercised by the courts in relation to the various administrative agencies and executive bodies of the state presents itself as widely accessible, fairly common, and fully anticipated part of the system. Therefore, if there is sufficient evidence for describing a phenomenon in one type of judicial review, it is logical to assume there will be sufficient evidence for this phenomenon in a different, much more common type of judicial review.
I understand that it is possible to dismiss the above-described mechanisms as just a natural part of judicial review, especially in countries where judicial review has become much more integrated into the administrative process (more on this later). This, however, changes if we consider that the legal opinions of the courts that are being integrated into administrative decision-making may present a different kind of law (or possibly jurisprudence). The rise of judicialization is often understood as being related to the rise of a new rights-based jurisprudence (also called Dworkinian, or modern liberal jurisprudence). This kind of jurisprudence that strictly separates the language and conditions of the law from its moral/ethical quality as related to the rights of the individual has supplanted the previously dominant position of legal positivism that understand the morality of the law as being related to its conditions (whether it has been passed according to the rules of a certain community) and thus equal to its language. This is quite important. From my preliminary observations, it often seems that administrative courts judicialize especially in cases where administrative bodies apply the law too rigidly and/or mechanistically, resulting in the failure to consider individual rights of interested parties. This makes sense as administrative courts in the Czech Republic are by statute called upon to protect individual rights. Case-law produced from this type of conflict, should it be accepted and used by the administrative bodies, substantially changes the values and mechanisms of administrative legal interpretation. The second hypothesis, dependent on the first hypothesis of this paper could therefore be summed up by the statement “the legal interpretations produced by administrative courts are substantially different from those of the administrative bodies”.
The proposed methodology is based mainly on quantitate research of case-law of the Czech administrative courts. In my preliminary findings, I have already identified several landmark decisions that are useful if understood as concentrated forms (or manifestations) of judicialization. By analysing the subsequent case-law and its frequency, it is possible to know how effectively certain legal opinions of the courts disseminated themselves in public administration decision-making and how well they are integrated into the larger decision-making systems within the executive. The same method shall be used for testing the second hypothesis, where it will be possible to find out how often different value-judgements of the courts play roles in quashing administrative decisions.
There are several potential limitations. One of them is the possibility of finding a theory that is only applicable to the specific system of the Czech Republic, if my research material remains limited to Czech case-law. This isn’t necessarily fatal for the research, but I would consider it a failure if I didn’t consider the potential usefulness for the wider European administrative community. Therefore, it will be necessary to pay close attention to different continental law legal orders to not lose sight of what these systems have in common and what can be surmised about all of them, especially those in which administrative judiciaries have undercome large changes, making them less separate from public administration (such as Austria).
