Dawson on Judicial Actvivism

The Political Face of Judicial Activism: Europe’s Law‐Politics Imbalance

Mark Dawson

Hertie School of Governance


January 13, 2012

Maastricht Faculty of Law Working Paper No. 2012-1

Abstract:     
While much of the debate on judicial activism in the EU has focused on the degree of scrutiny that the European Courts should place on the political autonomy of the Member States, this paper will argue that the judicial activism debate carries deeply political origins. The limited mechanisms of political response on the part of the Union’s institutions to judicial decisions may drive forward controversy over the Court’s political role. In simple terms, the institutional structure of the Union creates a constitutional framework in which the possibility for institutional dialogue between the Court and legislature is inhibited. The essay will develop this argument in 3 steps. The first part (s II) will examine the imbalance in the Union between (legislative) competence and jurisdiction: a long-held observation that may limit the ability of the EU institutions to re-regulate at the EU level fields of policy-making which have been effectively de-stabilised by Court decisions. A second part (s III) will examine how the failure of the Court to properly explain its decisions inhibits the ability of legislatures and Courts to politically engage. Finally (in s IV) the paper will examine the relationship between the EU’s ‘law-politics’ imbalance and another asymmetry of integration – the relation in the Union between social and economic values. In all three cases, the institutional structure established by the EU Treaties themselves may make imbalanced political responses to legal decisions – and hence republican claims of judicial activism on the part of the European judiciary – more likely.
Number of Pages in PDF File: 25
Keywords: European Court of Justice, Judicial Activism, EU Competence, Constitutional Dialogue
JEL Classifications: K33, K40

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1984636