In politics, you don’t need a verdict to provoke a crisis. Sometimes a single investigation, or the possibility that such an investigation could be feasible and begin to circulate as a possibility, is enough for the political system to change its behavior.
Italy learned this abruptly in the early nineties. The Mani Pulite operation began as an investigation into administrative corruption in Milan and ended up being the breaking point of an entire political system. In just a few years the major parties that had structured the Italian First Republic disappeared. It wasn’t an electoral defeat: it was a collapse—messier, faster, and harder for institutions to process.
The moment when the perception of legitimacy changes
What makes that episode distinctive is the shift in political legitimacy it produced. A substantial portion of public opinion began to see the judiciary as the only actor capable of imposing limits in a system that had lost its credibility. The problem wasn’t the broadening of the judicial role but the political system’s abandonment of its own duties. In that vacuum, justice, without replacing politics, occupies a symbolic space and creates a balance that is difficult to reverse.
“As that function weakens, the system undergoes displacement, a change. Part of the conflict moves to the media, part to social mobilization, and part to the judicial system”
Therefore, the onset of the problem precedes it and lies in the way parties have lost their ability to structure society. For decades, they were mediation mechanisms that managed to organize the citizens’ interests while absorbing their conflicts and channeling social demands through political channels. As that function weakens, the system is subject to a displacement, a change. Part of the conflict moves to the media, part to social mobilization, and part to the judicial system.
When this happens, what Sabino Cassese, a law professor, calls spillover can occur. Spillover comes into play when, due to a misreading of judicial autonomy, militant magistrates emerge. A militant magistrate is convinced that he has a mission to fulfill. Where is the line that separates a magistrate convinced he can indict a former Prime Minister from a militant magistrate? In my humble opinion, a magistrate, knowing the impact his decision will have and aware of the dynamics at play, should think many times before indicting a former Prime Minister. It would be unfair on my part to claim that Judge Calama hasn’t done so, but it would be worse if he hadn’t.
The Italian experience
The Italian case helps to understand the persistence of that change. Silvio Berlusconi is, besides being the political product of the vacuum following Mani Pulite, the figure that turns the relationship between politics and justice into a permanent conflict.
From that point on, every significant investigation takes on an immediate political translation. And the same happens with responses: justice is seen either as a faithful executor of its legal mandate or as a politicized actor, depending on the perspective. That duality still operates today.
“An ongoing investigation or a preliminary indictment is enough to alter the behaviors of political actors, especially in countries with fragile majorities”
In these kinds of systems, the most delicate moment is the point at which judicial procedures begin to have political effects. For a long time, that effect occurred through verdicts or in advanced stages of the process. Today the threshold, as I say, has shifted: an ongoing investigation or a preliminary indictment is enough to alter the behaviors of political actors, especially in countries with fragile majorities.
Precisely, Spain offers an example of this dynamic. The Government’s stability depends on a fragmented parliamentary majority, where actors like Junts per Catalunya hold pivotal swing positions with real capacity to disrupt the balance. In this environment, politics organizes itself around constant tactical decisions about costs, support, and reputation, leaving ideological blocs on the back burner. Any element that affects the perception of institutional stability carries immediate political weight because it changes the incentives of the actors.
The case of the 2018 motion of censure against Mariano Rajoy is often cited as an example of how a judicial decision has direct political consequences. Yet that episode belonged to a different logic: the Gürtel case ruling had already been issued. In other words, the system reacted to a consolidated fact, not to an ongoing process. Therefore, what might occur now is earlier and more uncertain: politics begins to react in earlier phases, before the procedure crystallizes into a definitive resolution. This shift in the timing of political reaction is one of the most significant changes in the contemporary political system.
Junts and the logic of permanent calculation
In fragmented parliamentary systems, the hinge actors —in the Spanish case, often non-state-wide parties— take on a particularly important role. Junts operates as a balancing actor within an unstable structure. Its behavior blends negotiation with the Government, competition with other pro-independence actors, and a constant assessment of the cost of each move on the national board. This produces a politics that is less linear and more situational, where position shifts with the immediate context and the effects of the institutional climate are amplified.
This weekend many have speculated that Junts (unlike the PNV, which depends on the Socialist Party in the Basque Country) could back an instrumental motion of no confidence by the Partido Popular, which could also be supported by Vox.
“Can we imagine an electoral campaign in a few weeks with Pedro Sánchez appealing to unite the progressives and with the PP and Vox backing Puigdemont?”
From my point of view, Junts would only support a motion if it achieved something that could counter what the polls say: almost half of the party’s voters repeatedly say they prefer Pedro Sánchez as head of the government in Spain; practically none say the same about Feijóo. This could only be neutralized if Feijóo committed to opening the possibility that Puigdemont could return to Spain immediately. But, for the PP and Vox —with Vox necessarily in the equation of a censure motion—, I tend to think that conservative instinct prevails.
In this frame, justice enters political calculations. You do not need a verdict for there to be political impact; it is enough for a judicial procedure to introduce uncertainty into a fragile majority. This creates a situation that is difficult to classify: a government is not directly conditioned by judges, although justice is not immune to political dynamics either. It is an intermediate and unstable zone.
In the current Spanish political debate, the so-called Zapatero case is an example of how a judicial procedure becomes a factor of political discussion long before its resolution. It may (or may not) determine majorities by itself, but the truth is that it enters a system already conditioned by parliamentary fragility and the logic of hinge actors. And, in this regard, the type of system in which it is embedded is an extremely important variable, because this is a system in which stability increasingly depends on perceptions of institutional solidity that can be altered in the early stages of the judicial process.
A conclusion hard to ignore
Italy reminds us that when reality shows that judicial action becomes a key piece in determining political outcomes, all incentives in politics are activated to try to influence the shaping and decisions of the judiciary. It is the judicialization of politics that ends up driving the politicization of justice.
