Courts and the Consociation: Judicial Review of Founding Political Agreements in Multi-National Democracies
21 September 2017
Universiteit Antwerpen, Stadscampus, Aula B.003 - Gebouw B, Prinsstraat 13 - 2000 Antwerpen (route: UAntwerpen, Stadscampus
Prof. dr. Patricia Popelier
Prof. dr. Josef Marko (Karl-Franzens-Universität Graz, Austria)
PhD defense Stefan Graziadei - Faculty of Law
How should courts rule on those challenges that call into question a negotiated political settlement in a divided polity on grounds of violation of the equality and non-discrimination principles? This is the main research question that organizes this bundled PhD thesis. The main cases analysed are decisions of apex courts on foundational political bargains (‘consociational regime questions’) in divided societies in Europe – chiefly relating to Belgium, Bosnia and South Tyrol (but also Northern Ireland and Cyrus). All these polities are divided societies that have adopted a consociational political system to solve a self-determination conflict, and in which critical inter-community agreements have been submitted to judicial review.
The first chapter discussed how certain apex courts in contexts of deep dividedness themselves reflect the organizational principles of consociational democracy (grand coalition, alternation in key positions, minority veto). It does conceptual work in defining the key features distinguishing a particular model of organizing apex courts in consociations (composition, decision making rules and allocation of top positions), an aspect which has remained conceptually elusive. In the second chapter I constructed the ‘integrative democratic tolerance’ approach, a set of legal and political criteria that courts can rely on when deciding cases on the law of democracy which are of a distinct political salience. The third chapter develops on that approach, further specifying how contextual factors should be taken into account by courts in cases touching the constitutional organization of a divided political community. The fourth chapter on national constitutional case law on Belgium’s consociation deals with a specific set of cases with high consequence, empirically tests the Pildes-Issacharoff hypothesis on judicial deference in highly political cases, and organizes the literature by showing three different judicial roles for apex courts in deeply divided societies.
The articles of this thesis contribute to the relatively recent debate about the role of and the proper corrections to rights based constitutionalism in societies that are deeply divided along ascriptive lines. Relating to the tension between the universal and the particular in comparative constitutional enquiry, the road taken in this thesis is a contextual one – with implications on the constitutional design of apex courts in divided polities and their techniques of judicial interpretation in consequential cases touching the constitutional architecture of multi-ethnic democracies.
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