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2 - What Courts Do

A Normative Theory of Court Decision-Making

Published online by Cambridge University Press:  15 September 2022

Christoph Krenn
Affiliation:
Max Planck Institute for Comparative Public Law and International Law, Heidelberg
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Summary

The first chapter of the book develops a normative theory of court organisation and decision-making. It provides the normative framework to assess the development and state of the ECJ’s procedural and organisational law. The chapter argues that the procedure and organisation of a court should depend on its role in a political system. To develop this argument, it presents three ideal models of court decision-making: a liberal model, a rule of law model and a democratic model. The liberal model is associated with the theoretical work of Christoph Möllers. He sees the role of courts as protecting individual liberty. The litigants need to be at the centre of the judicial process. The rule of law model, which I associate with Niklas Luhmann’s theory of the judicial process, sees the role of courts not so much in the service of the individual; rather it sees the judicial process as instrumental for creating normative stability by inducing acceptance for court decisions as authoritative interpretations of the law. Finally, the democratic model, that I associate with the theory of adjudication by Jürgen Habermas, conceptualizes courts as democratic organs of a political community. They need to connect to the will of a political community and aim for a procedure that embeds a court’s work in the public sphere.

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Publisher: Cambridge University Press
Print publication year: 2022

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  • What Courts Do
  • Christoph Krenn
  • Book: The Procedural and Organisational Law of the European Court of Justice
  • Online publication: 15 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781009247924.003
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • What Courts Do
  • Christoph Krenn
  • Book: The Procedural and Organisational Law of the European Court of Justice
  • Online publication: 15 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781009247924.003
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • What Courts Do
  • Christoph Krenn
  • Book: The Procedural and Organisational Law of the European Court of Justice
  • Online publication: 15 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781009247924.003
Available formats
×