Europeanization of Judicial Review

Nicola Ch. Corkin

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415713528
• eBook ISBN: 9781134680566
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Europeanization of Judicial Review argues that the higher complexity of the political framework in which laws are made today leads to less well-designed laws and loop-holes, allowing politicians to leave decisions to the courts. The higher complexity of the political framework is a result of the need in the EU to consider both national and European legal and political rules when phrasing new laws. Both to decrease the complexity in the design of legislation and to preserve the ideal of the rule of law, the courts now are more likely to rule laws unconstitutional.

The book employs a wide range of quantitative and qualitative methods to collect new data about the German, Austrian, and Italian constitutional courts over the last four decades. These three courts have a comparable history, theoretical background, and structure while differing in two key components: length of EU membership and legitimacy perception. Corkin employs multi-method research based on over fifty interviews with judges, politicians and civil servants; content analysis of abstract judicial review cases over three decades; and a database of over 300 variables relating to the courts and their surroundings. Her data reveals that in abstract judicial review, and in the wider political arena, political culture has become more confrontational due to attitude changes in politicians and judges. These attitude changes can be directly linked to the EU and have wide-ranging implications for legitimacy, democracy and political methodology.

Presenting a bridge between the revitalized realist and legalist debate, Europeanization of Judicial Review will contribute to socio-legal theory, literature on comparative courts, and both new institutionalism and Europeanization theory.

1 The Europeanization of Judicial Review

This first chapter of this book will consider the question of what abstract judicial review actually is and how it has developed over time. The power of abstract review lies somewhere between the purely legal activities and the political activities of a court; therefore, its impact is often analysed with a high degree of diversity across disciplines. An analysis of the empirical data related to the decision-making patterns in abstract judicial review, therefore, must be considered first and foremost within the diverse theoretical frameworks presented by the different social science disciplines that commonly study it. Moreover, the format that abstract judicial review takes differs across court models and cultural settings. This section will answer the following questions:

1. What is abstract judicial review?
2. What format does it take in the different cultural and governmental settings in which it occurs?
3. What is being reviewed?
4. How are academics able to study it?

1. What is Abstract Norm Review?

Norm review, or judicial review, as most Anglo-American academics term it, is the power of a court to decide the legality of a rule or norm which has been referred to the court for that purpose (Stone Sweet, 2004: 9). A legal norm is a rule of any kind that is passed and enforced by a public body (e.g., ordinances, statutes, administrative rules, common law, precedent, and international and supranational treaties) (Kalyvas, 2006: 575). This legal definition is the most basic way to construe the meaning of the term “norm.”

1.1. Norms and Legal Norms

Arguably, the simplicity of the term hides its complexity, especially within a social and cultural setting. Other academic disciplines are more aware of the potential intricacies in presenting a definition. For a sociologist, a norm is anything which is socially enforced. This includes enforcement by courts and the police but also less formal enforceability by social groups. The difference in meaning, therefore, lies in the enforceability by public bodies, i.e., courts, as well as in the perceived source of the norm. A sociological norm need not be based on a piece of legislation; it also can be a socially held belief. So for a sociologist, the German custom to clean the pavement in front of your house on Saturday morning is a norm. There is no legal requirement for doing so; however, most communities enforce it through social pressures. In the legal definition, this would not be a norm. The legal definition denies any social or ethical aspect. In philosophy, a norm is commonly understood as a reason to act, believe, or feel—such as commands or permissions. Norms are not descriptively true or false, since they do not purport to describe anything, but they prescribe, create, or change (Stone Sweet, 2000: 8).

This definition leaves room for both the social and the legal norm but is too broad to be useful in empirical research. As the purpose of this study is studying constitutional courts, it is possible to limit the definition of a norm to those which are legally enforceable. The term “norm,” as used in this study, therefore, denotes a rule which commands or permits a certain action and is passed by a public body and enforced by a court. This definition is a combination of political, sociological, and philosophical concepts that form a legally acceptable rule of how to describe a norm. This definition is compatible with definitions by the courts, the legal definition, without denying that each norm has an ethical and social dimension. Most importantly, this definition allows for the realisation that each norm is enforced in the social and ideological context of its place, time, and environment.

This point can be best illustrated by an example. In our own jurisdiction, the British Sexual Offences Act 2003 (development of the Sexual Offences Act of 1957) lends itself to the clarification of the definition. This act, due to its nature in dealing with socially highly sensitive and personal matters, is especially well suited to elucidate the distinction between a minimalist legal definition and a more encompassing political definition of a norm as used in this study. The act contains 143 parts. Section 1.1 defines rape in a basic way as sexual penetration without consent of the partner. Sections 1.2, 1.3 (referring to Section 75/76), and 1.4 give further insight into the conditions under which penetration is rape and the possible legal consequences of the action. The norm, in this case, is not “rape is punishable,” but rather, the Sexual Offences Act contains many norms. Norm 1: Penile penetration without consent is punishable. Norm 2: Penile penetration, in situations where the partner cannot give consent (such as unconsciousness or disability), is punishable as rape (Section 75). Norm 3: Penile penetration or sexual touching, if consent has been obtained by deception regarding nature, purpose, or identity, is punishable as rape or sexual assault (Section 76).

In the legal definition of a norm, each of these stand as they are written in black ink on the paper, denying the interpretative dimension of each term. Each of these sections is a rule passed and enforceable by a public body. However, there is a social and ethical dimension in the interpretation of the norm. The legal definition would like us to believe that this is now a rational statement, which can be applied directly to a case without consideration of ethical or social aspects. But each of these norms contain a wide range of differing interpretations, concepts, and terms whose meaning rests on the social and ideological surroundings of the interpreter.

The case of Linekar illustrates this application of a social dimension to the purely legal definition. A prostitute tried to sue for rape as her client had not paid and, furthermore, admitted to never having had the intention to pay. It was held that she was not deceived as to the purpose of the act because the purpose of the act was sexual gratification, not monetary compensation. However, in Piper, a girl allowed a man to measure her breasts for the purpose of assessing her modelling qualities. He was held to have committed sexual assault, as he did not have a modelling agency and, therefore, deceived her. It can be argued that the two cases are inconsistent in their interpretation. In one case it was held that payment for a sexual act did not change the nature of the act. In another, striving for a modelling career did change the nature of the act (Le Roux, 1997: 13). This illustrates that a norm has a social and ethical dimension hidden behind the words. These dimensions have an impact on the treatment of norms by judges; therefore, the minimalist legal definition falls short in presenting a comprehensive image. The legal definition has to be adapted to allow for the additional aspects of norms. This is most easily achieved by incorporating the sociological and philosophical definitions, as illustrated above. A norm is not simply a rule passed and enforced by a public body. It also permits or commands a certain action within society by members of the same society. What does it mean, therefore, if a norm is reviewed?

1.2. Judicial Review or Norm Review

Two distinct forms of norm review proceedings can be observed in the design of constitutional or supreme courts across the world: concrete and abstract. Concrete norm review is based on an actual case and, therefore, is a judgement on the constitutionality of the application of a particular law or norm to an individual case (Currie, 1994: 162). In these cases, the litigant has to have legal standing. In other words, the litigant’s rights have to have been directly infringed upon before he or she can take the injury up with the appropriate court and ask for a ruling on the application of a law to his or her circumstances. The litigant then has to follow the customary route through the ranks of the courts by means of appeal. The end of this journey through the court system is the highest court of the land, most often the supreme or constitutional court. These courts give a final and binding decision. In most jurisdictions, lower courts can refer the case directly to the constitutional court if they believe there is a constitutional issue. In other jurisdictions, only constitutional courts allow for the individual plaintiff to contact the court without first going through the ranks. In the above example of Linekar, the prostitute would have taken the question of the interpretation of the norm relating to the nature of the sexual act to a constitutional court and asked the court to review whether the interpretation by the lower court was compatible with the law or constitution.

In the case of abstract review, a court decides on the text of a law without a concrete case; hence, without the limitations on concentration on application to an individual case. Here the litigant does not have to have his or her individual rights infringed upon before he or she can ask the constitutional court to decide and, furthermore, the law does not necessarily have to be legally binding at the time of the case. If it is an individual citizen who asks for the ruling, the constitutional court does not have to accept the case. Whereas if someone acting in an official capacity, such as the head of state, a political institution, or a number of parliamentarians, asks for the ruling, the court is constitutionally obliged to consider the case. To apply this to the example of the Sexual Offences Act, in a different jurisdiction, one allowing for abstract judicial review, the opposition or another public body could have asked the constitutional court to decide on the constitutionality of Section 76. It could either declare the whole section constitutional, leaving it unchanged, or review the whole section, therefore voiding it and necessitating a change of the section by the legislature through new or additional legislation. It could also review parts of the norm. For example, it could declare only “deception of the nature of the sexual act” as unconstitutional, whilst leaving deceit by identity and purpose intact. This is called a partial unconstitutionality ruling.

The application of the above example to both concrete and abstract judicial review illustrates conditions which have to be present in a legal system allowing for judicial review of primary legislation, may this review be either abstract or concrete in nature. Supremacy of parliament, one of the foundations of the British Constitution, clearly does not allow for judicial review of norms directly created by the legislature in a constitutional way. The concept of abstract norm review contains the idea that the constitution is sovereign, not the legislature. As a result, it is almost exclusively found in civil law systems with codified constitutions. In abstract judicial review, the court is equal to the political branches.

1.3. Constitutional Courts, Constitutions, and Abstract Judicial Review

Abstract judicial review, therefore, is an important power for a court to hold within the political system. It involves the courts closely with lawmaking (Shapiro and Stone Sweet, 2002: 185). To look at it from a political perspective, abstract norm review permits an unelected body, a court, to decide if a law passed by the elected political body can stand unchallenged and be applied within the state. Furthermore, the court can make this decision before the law is legally binding or after, depending on the court model. In this function, the court is an important part of the separation-of-powers model embedded in most codified constitutions in liberal democracies in Europe. The court ensures that the elected body adheres to the fundamental rules of the state. Within the perceptions and common representations of academic legal scholarship these rules are presented as forming the borders of power the public body legitimately holds, and the court’s duty and obligation is to act as a safeguard and to ensure that the public body remains within these borders—that all the norms passed by the public body are intra vires. The court ensures that the use and extent of power by a public body is legitimately within its power (Barnett, 2004: 736).

However, only certain courts have this power of abstract judicial review. The courts in most legal systems were created with distinct and differing specialisations. Different species of norms are applied by different courts. So for example, a court specialising in tax or business law decides on different norms than a court specialising in family law. Trade law is applied in trade courts, such as the Dutch Trade Tribunal. Criminal law in Spain finds its final interpretation in the criminal chamber of the supreme court. Britain adjudicates employment matters in an employment tribunal. Constitutional law generally is applied in a specialised constitutional court, such as the constitutional courts of Italy, Germany, Austria, Spain, Greece, or Portugal. These constitutional courts make a decision not only as to which legal rules are compatible with the constitution but also decide applicability between conflicting norms. The way the court system has divided the court areas is very much system-specific, even if there are common traits between individual countries.

Norm review of legislation, therefore, takes place in a court specialising in constitutional matters. This court weighs whether a norm passed by a public body can legally be applied by other courts within the same system. In essence, the constitutional court judges if it was in the power of the public body to pass this norm and if the norm was passed in accordance with previously passed norms. If it was not, then the court has to decide which norm is more important and, therefore, if the norm under consideration is unconstitutional. To do this, the court requires a guideline as to what the powers of the public bodies are and which norms supersede other norms. This guideline can be found in the constitution, a set of rules which supersedes all other rules (Jacqué, 2000: 56). This concept forms a distinct difference between most common law and civil law countries. Civil law countries, which are based on the philosophical tenets of Roman and Napoleonic law, consider legislation a hierarchy based on natural laws. In this view, natural law theory posits the existence of laws which are set by nature. In other words, there are laws within nature, which can be discovered and, therefore, are valid everywhere and to everyone. These laws are above all other laws and any legislation has to fit within the borders these natural rules create.

The assumption that there are self-evident laws in nature, which simply have to be discovered justifies a hierarchy of laws. From a philosophical point of view, the concept of inalienable, natural laws embedded in our mere humanity has been discussed throughout the centuries. Aristotle bases them on the idea of natural justice, whilst more recent thinkers, such as Hegel, root them in their basic “person-ness.” Historically, the idea of natural law and rights finds its expression in a wide range of systems and occurrences. When the Romans and later in the 18th and 19th centuries other European rulers codified laws into constitutions, they used the argument of natural laws and rights. The first successful attempt to do this, and the one still forming the basis of most legal systems in Europe, was the Napoleonic Code of 1804. In civil law countries, the constitutions are the highest level of laws. Any rule passed has to conform with the rules contained in the constitution. If the rule does not conform to the constitution, then it obviously was passed without a public body having the right to pass it, as nothing can be passed to counter the rules contained in the constitution. It, therefore, is ultra vires, outside of the power of the public body. If it is ultra vires, then it can be declared either wholly or partially unconstitutional by the constitutional court under abstract norm review.

1.4. The Process of Abstract Judicial Review—A Definition Spanning the Different Jurisdictions in Europe

The purpose of this section is to give an historical as well as philosophical understanding of the status of abstract judicial review in Europe before presenting the statistical evidence for a change in the position of abstract review in the political system. A theoretical definition of the term has already been presented in the Introduction. However, it remains necessary to apply the definition to a different jurisdiction and ascertain the comparability. Judicial review is the “judicial oversight over the validity of norms” (Creifelds and Meyer-Grossner, 1990: 801). Each court, regional or national, has the duty and power to oversee the legality of norms, as long as the norm in question is not the providence of a specific court, for example a tax court. This is especially the case in countries with a constitutional court where all cases of constitutional validity ultimately have to be decided. The majority of norms will be dealt with by the constitutional court, as the constitution...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of Figures and Tables
• Introduction
• 1 The Europeanization of Judicial Review
• 2 Developments in Abstract Judicial Review 1980–2010
• 3 Decisions and Decision Making
• 4 Precedent, Black Letter, and Institutions—Influences on Decisions
• 5 Institutions and Europeanization
• 6 Two Stages of Europeanization
• Bibliography
• Index