The theory of constitutional dialogue has been extensively studied in recent years. The preliminary reference procedure is often highlighted as a primary tool for constitutional conversations between courts. Although considerable research has been devoted to the courts' referral practices and the preliminary judgments of the constitutional courts, less attention has been paid to the referring courts' reply. However, in order to analyse whether the preliminary reference procedure triggers a genuine dialogue between courts, the follow-up judgments by the referring courts need to be taken into account. Consequently, the purpose of this project is twofold.
First, we will collect and analyse these follow-up decisions of the referring courts in order to examine the actual consequences of a preliminary judgement. The project will focus on the study of preliminary judgments by the Belgian Constitutional Court, in particular those in which the Court determines that a legislative lacuna is present. After all, remedying an unconstitutional lacuna requires positive action. What's more, since 2008, the Constitutional Court allows courts to complement the unconstitutional law under certain circumstances. This project will show to what extent Belgian courts actually undertake positive action by extending the scope of the law.
Unfortunately, there does not exist a comprehensive database that includes all judgments of ordinary courts; only a selection of case law is uploaded in the Juridat database. Consequently, for the decisions that cannot be found in this database, the registries of the relevant court will be contacted. The assistance of a job student to collect these judgments and enter them into a Nvivo-database, would be of significant value.
Secondly, we will focus on the attitude of judges towards the Constitutional Court. By means of interviews and surveys we will examine to what extent the Constitutional Court is perceived as an initiator of constitutional dialogue. To reach the judges in the French and German speaking part of Belgium, a reliable translation of the survey is crucial. This approach correlates with the increase in use of qualitative research methods within legal research, into which I plan to gain more in-depth knowledge.
This project does not encompass a new research program, but complements my FWO Postdoctoral Research in which I focus on the case of legislative omissions to examine the role of the Constitutional Court as initiator of constitutional dialogue. Within this FWO research, the position of the legislator as participant in the constitutional dialogue is examined as well.