The decision-making process is under stress all around Europe. The aim of this paper is to demonstrate the influence of the current explicit criticism against representative democracy on the slipping of power from politics into judges. By means of an analysis of the most updated italian case-law of the Court of Cassation and the Constitutional Court, we can infer that in Italy – a civil law system – a parallel decision-making circuit exists. In fact, this slipping towards a judicial-oriented decision making process is enforced by the same essence of populism. In fact, the latter is based on the idea of the failure of both the Parliament and, generally, of the representative democracy institutions. In conclusion, the paper aims at offering a fair overlook of the slipping of the decision making process from politics into judges in a civil-law system as Italy.
In the current crisis of representation, when we vote less, are less inclined to enrol in political parties and politics resounds with the sound of anti-political parties; in times when public problems are so complex that representatives are increasingly more and more incapable of engaging, let alone solve, them most notable issues of our societies; in communities where uncertainty is a powerful individualizing force, judicial power may become the depositary of the hopes for justice that seems to constitute the kernel of political representation today. In constitutionalist settings in which individual petitions submitted to the judiciary are the symptom of a common grievance, special judicial techniques may be devised to enable courts to address general issues laying behind individual appeals. In this respect, two experiences seem particularly relevant: the acciòn de tutela implemented by the Constitutional Court in Colombia and the pilot judgment procedure of the ECtHR.
Usually, the strong connection – emphasised by Max Weber – between social and institutional pluralism on one hand and consociational democracy on the other hand is deliberately left out by populist forces in power. Those movements generally tend to consider referendums as a key tool to give back power to people and, thus, to boost direct democracy at the expense of the representative one. Far from being just a political option, the anti-representative approach of populist regimes ends up being a real constitutional strategy. As a matter of fact, we can define this strategy as an «instrumentalist approach» to (constitutional) law: since liberal constitutionalism has led to a sidelining of people’s will, the Constitution – irrespective of its writtenness or rigidity – must be amended in order to restore a proper balance between direct and representative democracy.