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Conclusion

Published online by Cambridge University Press:  26 June 2019

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Summary

By systematically analysing the case law of the Belgian Constitutional Court, this book contributes to the scholarly debate on the role of constitutional courts in democratic systems. The main research question relates to how the BeCC balances its role as a deliberative institution against its functioning in a political system defined by consociational features by behaving strategically in salient cases. The interdisciplinary methodology used to answer this question is particularly innovative. While normative and empirical projects usually travel on largely separate tracks, this book sought to integrate both approaches. In particular, the case law of the Court was evaluated empirically from two angles: (a) to what extent does the Court employ the discussed deliberative ‘judicial good practices’; and (b) to what extent is the Court's performance affected by strategic considerations? A final relevant sub-question, that addresses the normative implications of the empirical findings, is: (c) whether such strategic behaviour corresponds with the deliberative expectations weighing on the Court?

In what follows, it is first discussed why an in-depth scrutiny of the three selected judicial practices – case outcomes, citation practices and the application of the proportionality analysis – generates new insights into the judicial behaviour of constitutional courts. Next, an overview is given of the main results. Overall, the findings show that the Belgian Constitutional Court has developed into a venue for deliberation but that, simultaneously, it exhibits strategic behaviour in order to ensure compliance with its rulings and to protect itself against institutional reprisals. Following that, it is argued that the Court's strategic behaviour can be understood as part of the deliberative performance, and that the third sub-question should therefore be answered positively. Finally, there is a consideration of some recommendations for both the Court and the legislator.

Three main aspects of the Court's case law were explored: case outcomes, citation practices and the application of the proportionality analysis. First, scholars traditionally concentrate on whether the individual ideological preferences of judges predict their decision to invalidate legislation or not. The analysis on case outcomes in this book offers a new perspective because it takes into account the effect of collegial dynamics and because it integrates a variety of ‘in-between’ modulated outcomes.

Type
Chapter
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Judicial Review and Strategic Behaviour
An Empirical Case Law Analysis of the Belgian Constitutional Court
, pp. 327 - 338
Publisher: Intersentia
Print publication year: 2019

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  • Conclusion
  • Josephine De Jaegere
  • Book: Judicial Review and Strategic Behaviour
  • Online publication: 26 June 2019
  • Chapter DOI: https://doi.org/10.1017/9781780688619.013
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  • Conclusion
  • Josephine De Jaegere
  • Book: Judicial Review and Strategic Behaviour
  • Online publication: 26 June 2019
  • Chapter DOI: https://doi.org/10.1017/9781780688619.013
Available formats
×

Send book to Google Drive

To send 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 sending content to Google Drive.

  • Conclusion
  • Josephine De Jaegere
  • Book: Judicial Review and Strategic Behaviour
  • Online publication: 26 June 2019
  • Chapter DOI: https://doi.org/10.1017/9781780688619.013
Available formats
×