A common view is that judges should stay out of the political playing field. Maurits Helmich (Erasmus School of Law) argues in his dissertation that in many cases the adjudication is inherently political. The reseacher brings up a number of well-known cases, such as the Dutch Urgenda case and the lawsuit over the burka ban in France, to illustrate this point.
In 2017, the Catalan desire for independence led to great tensions in Spain. A referendum was organised by the regional government that was not recognised by the Spanish constitutional court. When the referendum did go through, the Guardia Civil assaulted citizens and ballot boxes were confiscated. This is one of the cases doctoral student Maurits Helmich addresses in his dissertation 'Using Law to Depoliticize Adjudication? A Skeptical Thesis'.
Acknowledge political power
A classic ('Montesquieuan') view is that judges are the mouthpiece of the law and that while they have a degree of political power thanks to their interpretive freedom, you have to curb this as much as possible through doctrines. This view of jurisprudence is facing increasing criticism. According to the researcher, you should recognise political power as much as possible and determine as a society how to deal with it wisely. In his view, the choices you make in that regard are also politically charged. "I compare it to gender; is that a construct or biologically determined? That ultimately is a politically charged discussion. The same goes for jurisprudence. The question of what judges may or may not decide is also political."
But why is the Spanish case so interesting to Helmich? "The Spanish constitutional court made several rulings that labeled the independence project as unconstitutional. They reasoned that the desire for independence can only be legitimate if it is supported by a majority of Congress, which was not the case. The common view was that the court was applying the law and the Catalan government was deviating from it. You can also say that it is a struggle between two ideological projects about the distribution of power. If you look at it that way, the court's ruling is actually very politically charged."
"The real question is about what the true French identity is and that is a political question that judges cannot evade"
Another case that he discusses is about the burka ban introduced by France, which came to the European Court of Human Rights (ECHR). The French state reasoned that a burka violates their rules in public spaces (ground rules of communication), but opponents saw a restriction of religious freedom. The ECHR did not want to interfere too much with internal issues, according to the doctoral candidate, and vindicated the French state. "For me, this case is much more than a clash of two interests. The real question is about what the true French identity is and that is a political question that judges cannot evade. In this case, they did not seem very interested in the rights of Muslim women."
According to Helmich, it is problematic when people no longer feel represented by the judiciary, as was the case in Catalonia where the legitimacy of the court was questioned. The research does not attempt to come up with ready-made recommendations. However, he would like to see the judiciary be less deceived by smart legal constructions. "Don't just look at the legal reality, but look more at the lived reality," he says, referring to the case against Uber about their drivers being employees. "You see that judges are now looking at this more and more critically and they are taking much more into account how the drivers themselves experience it."
The legal philosopher also discusses the Urgenda case, in which the Dutch state was successfully sued to stick to its own climate goals. The court reasoned that the government should take appropriate measures to protect citizens from climate change. "I can see the value of environmental case law. If you see the constitution as a cohabitation contract to live together in a sustainable way and take that idea seriously, you also have to take care of the environment and the climate. I find it very plausible that judges want to stand for that."