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Judicial Review and Strategic Behaviour: an Empirical Case Law Analysis of the Belgian Constitutional Court

ISBN13: 9781780686943
Published: April 2019
Publisher: Intersentia Publishers
Country of Publication: UK
Format: Hardback
Price: £94.00

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Traditionally, legal scholarship on judicial review is predominantly normative, concentrating on how courts should decide cases and to what extent they should show deference towards the legislative branch. Political scientists, on the other hand, seem more interested in what motivates judges and which factors influence their decisions. In contrast to the extensive body of literature on judicial behaviour in countries with a common law tradition (especially on the US Supreme Court), there is little systematic, empirical knowledge relating to European constitutional courts. Given the constitutional courts’ function in liberal democracies, this is surprising.

Focusing on the Constitutional Court of Belgium, the approach of this book is to combine normative ideas on how the Court should act with an empirical case law analysis. It explores the extent to which the Court performs as a deliberative institution, while operating within a consensual political system: Does the Court employ deliberative ‘judicial good practices’? Is the Court’s performance affected by strategic considerations? And if the Court’s rulings reflect strategic actions, does this behaviour correspond to the deliberative expectations weighing on the Court?

The answers to these questions contribute to a fundamental discussion about the appropriate role for judicial institutions in a democratic society. The book shows that the Court’s case law is (in part) shaped by strategic considerations. In salient cases, the Court prudently adapts various aspects of its decision in order to stimulate acceptance and compliance. The analyses reflect the fact that the Court is willing to engage in dialogue and that a consensus must be found amid a pluralist group of judges in each case. In addition, by continuingly taking into account the anticipated behaviour of its audience, the Court protects its institutional legitimacy for future cases.

Due to this interdisciplinary focus, the book provides essential insights to both legal scholars and political scientists.

European Jurisdictions, Belgium

Part I. Normative Framework: The Deliberative Performance of Constitutional Courts
Chapter 1. Constitutional Review in Democratic Systems: Countering the Counter-Majoritarian Objection

Part II. The Contours of Judicial Decision-Making
Chapter 2. The Institutional Framework of the Belgian Constitutional Court
Chapter 3. Variation of Judicial Behaviour Within the Institutional Boundaries

Part III. Empirical Analysis of the Belgian Constitutional Court's Case Law
Chapter 4. Translating Case Salience into Measurable Explanatory Variables
Chapter 5. Case Outcomes
Chapter 6. Citation Practices
Chapter 7. Proportionality Analysis