sabato 21 gennaio 2012

Maartje De Visser on Judicial Activism

A Cautionary Tale Some Insights Regarding Judicial Activism from the National Experience


Maartje De Visser


Faculty of Law - Maastricht University; Tilburg University


January 13, 2012

Maastricht Faculty of Law Working Paper No. 2012-2

Abstract:     
Courts, whether national or European, are sometimes subject to charges of judicial activism. Adopting a comparative perspective, this contribution charts the ways in which constitutional courts in the Member States have sought to mitigate or pre-empt charges of activism. The primary purpose is to identify attractive solutions or lessons the ECJ may draw in dealing with this perception of judicial activism. Section 2 showcases examples of activist behavior of national constitutional courts. This functions as a prelude to some general reflections on the role and function of such courts to the extent that the reflections are relevant to questions of activism and legitimacy. In section 3, aspects of the jurisdiction of constitutional courts and standing rules are considered. These factors help to determine the prominence of these courts in the constitutional system and their likelihood of becoming embroiled in deciding contentious issues, with implications for their legitimacy. Section 4 looks at various decision-making techniques used by constitutional courts to safeguard their political legitimacy. It discusses the use of deference rhetoric; relying on technical and procedural grounds of review; well-balanced reasoning and choosing remedies that avoid an annulment verdict. In section 5, the responsibilities of the legislature to also uphold the constitution, in addition to constitutional courts, is considered. The contribution concludes that one of the main lessons for the European debate is to acknowledge that not all vectors of activism are fully within the control of the court. In addition, while national constitutional courts appear to alternate periods of judicial activism and restraint, this is more difficult for the ECJ, given the more dynamic pace of development and open-ended character of the Union. Finally, it is important to realize that most, if not all, of the techniques to mitigate charges of activism involve trade-offs. To the extent that a choice would be made to counter or pre-empt allegations of activism, one possible strategy that the ECJ may want to emulate concerns the way in which national constitutional courts communicate in their relationship with the political institutions, which should hopefully ameliorate the quality and persuasiveness of its reasoning.
Number of Pages in PDF File: 25
Keywords: Judicial activism, constitutional courts, jurisdiction, locus standi rules, techniques of decision-making


Full paper available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1984639

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