an incidental effect. As constitutional courts have become active, often striking
down legislation as unconstitutional, there has, it is claimed, been a change in
legislative behaviour. The idea is that parliamentarians have become increas-
ingly aware that wielding a parliamentary majority may not be enough to put
desired legislation in place. They must now be aware of the possibility that the
courts can annul their statutes. This is particularly a concern in countries such
as France and Germany where a minority of legislators, having lost the vote in
the chamber, may refer an act before it has come into operation to the
constitutional court. Thus, the opposition frequently has a second chance to
achieve in the courts what it was unable to do in parliament. As a result,
politicians have become very much more aware of constitutional issues and cite
these during their debates on legislation. Rather than risk having new legisla-
tion struck down, governments try to predict what objections constitutional
courts might make and avoid them by careful drafting. In the same way,
oppositions attempt to have amendments accepted by the government by
disguising them as motions to reduce the risk of the legislation falling foul of
the courts. Hence politics becomes ‘judicialized’. Some commentators seem to
regard this as an unfortunate consequence of the rise of judicial power,
referring often to thechilling effecton legislative preferences. Alternatively,
it might be seen as a desirable fact that elected politicians take more care to
behave in a constitutional manner.
The problem, if it is one, applies particularly where this form of judicial
review of an act before it comes into operation, known asa prioriand abstract
review, occurs. In the USA, where the Supreme Court has always been
powerful, critics seldom claim to have noticed a judicialization in Congres-
sional behaviour. However, as in allcommon lawjurisdictions withjudicial
review, the US courts may only take note of the Constitution after legislation
is in place and in the context of a genuine piece of litigation.
Judiciary
The judiciary is the body of judges in a constitutional system. The powers and
role of the judiciary varies from country to country, but there will always be
some, albeit indirect, significance both in the methods used by judges to
interpret the law and in theex cathedrastatements of individual judges. The
scope for judicial influence in the policy-making process will be greatest where
there is a written constitution with ambiguous provisions and, as in the USA,
the institution ofjudicial review. However, even in systems such as the British
legal system where the judges are traditionally reticent about their law-making
as opposed to law-finding functions, there may be great scope for judicial
policy-making and for judicial intervention in the political arena. Thus in the
United Kingdom in the 1960s the field ofadministrative lawwas elaborated
Judiciary