Judicial Constraints on Legislatures in Europe 1990-2020
JUDICON-EU is an international comparative research project that aims to map the diversity and measure the strength of judicial decisions, as well as explain judicial behavior vis-á-vis the legislative branch in Europe.
Recent confrontations between constitutional courts and parliamentary majorities have attracted international interest in the relationship between the judiciary and the legislature. Several political actors have argued that courts have assumed too much power, politics has been extremely judicialized. These claims are explicitly or implicitly connected to the charge that courts have constrained the room for manoeuvre of the legislatures too heavily. Nevertheless, the question to what extent has this aggregation of power constrained the dominant political actors’ room for manoeuvre has never been examined accurately and systematically. The JUDICON-EU research project is trying to fill this gap in the literature.
Systematic research is especially needed since there is an inexplicable discrepancy between the practice of and empirical research on constitutional adjudication. The main deficiency of research on constitutional adjudication consists of an unsophisticated dichotomous approach that merely categorizes decisions of constitutional courts as positive or negative, i.e. as decisions that concluded in declaring the constitutionality or unconstitutionality of a given legal regulation. This approach is deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter has shown widespread differentiation of judicial decisions over the last thirty years.
Furthermore, diversity of judicial decisions implies that we might be able to arrange judicial decisions into a ratio scale and evaluate them according to their strength. Strength as used in this research project shows the extent to which constitutional courts restrict the room for manoeuvre of the legislatures. While all decisions of a constitutional court have the same legal binding force, they may reduce the scope of legislative activities to varying degrees. In order to fit research to reality, a scale has been elaborated to answer the question to what extent courts have constrained the legislatures in general.
Thirdly, based on the dataset containing all relevant decisions of the European constitutional courts between 1990 and 2020, the project will be able to test quantitatively various models of judicial behavior like the attitudinal model, internal or external strategist models. Explaining judicial behavior based on social science methods has been a major undertaking in American empirical legal research for a long time, most recently social science methods became more established also in research on European constitutional courts. The JUDICON-EU project’s comprehensive dataset will allow the participants and external researchers to give a clue to judicial behavior in Europe.
For more detail see the homepage of the JUDICON-EU research project.
Constitutional pluralism and political realism in the EU
In the last decade, there have been numerous conflicts over jurisdictional claims in the European context. National constitutional courts and the European Court of Justice clashed with varying degrees of intensity over the question of ultimate authority. These claims led to a de facto pluralism and conflict of real and much-wanted constitutional orders. Should these parallel universes somehow be reconciled or is the existence of constitutional pluralism a desirable phenomenon? Drawing on the theoretical tenets of radical constitutional pluralism and political realism this research project argues normatively that political compromise rather than adversarial legalism has always been and should continue to be the right solution to the puzzle of European constitutionalism. While compromises between national political leaders and the involvement of national governments in judicially intractable conflicts over the supremacy of EU law have always been part of the DNA of the European integration process, proponents of both full parliamentarization or full judicialization of European politics want to diminish the role of the European Council and political compromises in the European decision-making processes. By contrast, this research not only emphasizes that the compromises were crucial to the survival of the EU, but also makes normative arguments for maintaining or strengthening the role of the European Council and national governments in conflict resolution – even at the expense of the European or national high courts and parliaments. Furthermore, normative intergovernmentalism has general implications for the pluralist European constitutional settlement and for the institutional reform of the ECJ as well.
The concept of politics in the Hungarian textbooks of the late 19th century
State-centered views of politics have dominated throughout the 19th century, but an incremental separation of political science from legal studies occurred in the second half of it. While political studies have still focused on state activities and regarded the state as the center stage of political struggles, it became more and more obvious that political studies and legal studies have different subjects. Consequently, almost parallel with the replacement of the historical school of legal studies and thinking by the dogmatic view of public law, the scientific approach to politics became an autonomous field of research at Law Faculties in Hungary. This separation of political studies from legal studies has been also nicely reflected in the process how political science got its own Chair at Pázmány Péter University in Budapest (1873). All of the subsequent holders of this Chair (Dezső Szilágyi, Győző Concha and Pál Szandter) have written textbooks and introductions to the study of politics. It is self-evident that the concept and the conception of politics and the political elaborated in these textbooks are worth for an analysis if we want to understand what was the meaning of the terms ‘politics’ and ‘political’ in the academic context in the last decades of the 19th century and in the first half of the 20th century.
The Role of Natural Law in Regional Human Rights Adjudication
Originally both courts the European Court of Human Rights and the Inter-American Court of Human Rights relied heavily on the margin of appreciation doctrine established as a standard of review for resolving sensitive issues lacking consensus within the relevant communities. Under this standard, both courts had to exercise deference when addressing matters of moral, cultural, economic, and political controversy. By doing so, the courts aimed to prevent the system from disproportionately intervening in the democratic processes of the nation states.
However, over time, there was a gradual shift in the behavior of these supervisory international bodies. They began to expand their areas of decision-making by various means: (i) by broadening their jurisdiction by applying new treaties and non-binding declarations to cases; (ii) by restricting the margin of appreciation given to national judicial bodies; (iii) by adopting the “living instrument” and the “pro-homine” theories of interpretation; (iv) by declaring that nation states were bound by all decisions made by supervisory bodies, regardless of the state’s involvement in the procedures; and (v) by declaring new implied rights not explicitly stated in the text of both treaties.
This informal expansion of authority of both courts European Court of Human Rights and the Inter-American Court of Human Rights has given rise to multiple problems concerning the legitimacy and functionality of both systems. These problems must be addressed if both systems aim to have a meaningful impact in their regions during this century.
This research project looks at the problems described above from a new point of view of the natural law theory. Natural law theory has formulated a comprehensive stance on how domestic and international bodies should act to foster fair and just relations between them. In this regard, natural law theory offers a principled solution to the challenge of coordinating the interaction between national and international authorities: subsidiarity. According to this principle, international bodies exist not to supplant the authority of the nation state, but to assist it in areas where addressing specific problems demands coordination among various actors at the supranational level.
For more detail please click here.
Budapest
