This paper critiques the absence of a framework in CCL to assess the legitimacy of judicial review. There have been several attempts to tell a history of judicial review from its origin in the US to its spread worldwide. These accounts have a ‘lumping’ tendency and appear to suggest that the judicial role has remained unchanged over time. ‘Splitters’ have pierced this narrative only to some extent – they argue that institutions of judicial review differ across jurisdictions (concrete v. abstract) or that differences in judicial review are dependent only on the political context. However, there is little discussion of how and why judicial legitimacy differs across jurisdictions. This paper aims to fill this gap – I devise archetypes of JR usually found across jurisdictions based on how one settles the question of democracy vs. rights. I will then provide the constituent elements of these different archetypes which can be used to identify which jurisdiction adopts which model of JL.
This paper is the first one in a series of articles about the participation of Czech and Slovak courts in the preliminary ruling mechanism; the work is done within the framework of a three-year project called DialogUE funded by the Czech Grant Agency. In this paper, the authors will provide an overview and an analysis of all cases submitted to the ECJ by Czech apex courts, i.e. by the Supreme Court and the Supreme Administrative Court. In each case, our aim is to analyse: 1. the quality of the reference by the national court, 2. the suitability and usefulness of the ECJ’s answer, and 3. the quality and persuasiveness of the national court’s follow-up ruling which transposes the ECJ’s answer into the case at hand, and thus into the domestic legal order. The focus of our research is on the last – third – stage of the process, especially since national follow-up rulings are often unknown to the EU law community due to their unavailability in other than the national language.
The presentation explores several strategies through which European constitutional courts defer issues to the legislature and soften the authority of their rulings. Through these trends of weak judicial review, the judges take into account “the preferences and choices of other actors and the institutional context in which they act.” Through these strategies, courts promote incremental approaches to some of the most important and controversial social and political issues facing the respective countries without jeopardizing their own status. By way of gradations of constitutional defects, judges can open different avenues of influence on the legislature and illuminate the nuances of judicial power. These levels of constitutionality provide flexibility to the judicial work and encourage courts to work with other political actors. They provide judges more institutional space to shape nuanced rulings and to address difficult and divisive social issues through judicial incrementalism.
Judicial behavior on collegial courts reflects a complex set of personal, ideological, strategic, and institutional considerations, incentives, and interests. The paper presents the results of a novel empirical research of all enlarged panel decisions of the Israeli Supreme Court between 1948-2021. We coded the individual votes of each of the justices on all 476 panels for agreement/concurrence/dissent, as well as the word length of each individual judicial opinion, as a proxy for the amount of judicial investment and degree of agreement or disagreement with other justices’ opinions. The results reveal periods of multivocality and univocality on the Court, changes in agreement characteristics along diverse axes, exceptional judicial figures, and focal legal issues. These findings shed light on a host of questions in judicial behavior, panel dynamics, and Israeli judicial politics, and inform the debate on the role of internal vs. external determinants of judicial behavior.