The deliberative performance of the Belgian constitutional court in a consociational system: an empirical analysis
24 October 2017
Universiteit Antwerpen, Stadscampus - Promotiezaal Grauwzusters - Lange Sint-Annastraat 7 - 2000 Antwerpen (route: UAntwerpen, Stadscampus
5:00 PM - 7:00 PM
Josephine De Jaegere
Patricia Popelier (Faculteit Rechten) & Jan Beyers (Faculteit Sociale Wetenschappen)
PhD defence Josephine De Jaegere - Faculty of Law
Increasingly, constitutional courts play a role in democratic policymaking. They have the ability to nullify legislation passed by parliament and their rulings define a framework for future policymakers. Moreover, because of expectations weighing on such courts– such as providing an inclusive review procedure and giving reasons for their decisions – they may enhance the deliberative component of democratic decision-making. Hence, improving our understanding of how these courts write their opinions and which forces that play upon constitutional judging is a relevant research target. Previous research has shown that courts aim to maximize their effectiveness, but that their room for manoeuvre is defined by the institutional framework and political context in which they function.
By empirically analysing the Belgian Constitutional Court’s (BeCC) case law, I studied how internal collegial constraints and a consensual political context define the choices the Court makes. The main hypothesis was that the BeCC acts strategically in salient cases by adapting aspects of the ruling (proclaiming modulated outcomes, citing more authorities and being clearer on the grounds for establishing a violation) in order to stimulate acceptance and compliance. For that purpose, I build an extensive database on the Court’s case law, including all cases –annulment procedures as well as preliminary references- since its inception until 2015 (n=3145). Several regression analyses – including measures for salience and additional variables pointing at alternative explanations – demonstrated that strategic considerations at least in part determine the BeCC’s behaviour.
Yet, while such considerations are traditionally believed to be in contrast with the normative expectations weighing on the Court, I argue that this behaviour should be understood as part of the Court’s deliberative performance. In particular, the results reflect the Court’s willingness to engage in dialogue and to contribute to the quality and legitimately of policymaking. In that sense, my empirical analysis contributes to fundamental discussions about the appropriate role for constitutional courts in a democratic society.
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