Democratic Consolidation, Judicial Reform and the Judicialisation of Politics in Southern Europe

This chapter has three different but interrelated objectives. The first is to look at the recent past of the Southern European democracies, analyzing the process of judicial reform as it unfolded during these countries' democratic transitions and accounting for thepolitical factors behind the adoption of particular judicial institutions. We argue that the outcomes of judicial reform in Italy, Greece, Portugal, and Spain were the result of two major factors: the legacies of the non-democratic past in Southern Europeand the self-interested strategies of political actors involved in processes of institutional design. Our second objective is to estimate the extent to which new judicial institutions have contributed to democratic consolidation in Southern Europe. Two aspects of that contribution are discussed. On the one hand, the role of constitutional courts in the protection of political rights and as a source of important cultural changes inside the judiciary, diffusing principles of constitutionalism and fostering the adoption of modern legal doctrines to which judges socialized under authoritarian regimes were not particularly sensitive at the time. On the other hand, we analyze the role of judicial review as an "arbitral" mechanism and its contribution to the completion of transitional pacts that had been left open in what concerned the most complex and divisive issues facing the new Iberian democracies. Finally, our third objective is to assess the contemporary role of these countries' judiciaries and its peculiarities, discussing the wave of judicial activism in Italy in the early 1990s, its effects on the political system, and the extent to which the Greek, Portuguese, and Spanish cases have replicated that experience.