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PART II - THE CONTOURS OF JUDICIAL DECISION-MAKING

Published online by Cambridge University Press:  26 June 2019

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Summary

The first part of this book discussed how constitutional courts may enhance the deliberative quality and legitimacy of democratic policy-making. This led to the formulation of a handful of judicial good practices, such as following a fixed argumentative framework, using relevant and persuasive citations to underpin judgments and communicating with the legislator through modulated rulings. However, deliberative performance is an intertwined and complex endeavour and may differ between courts and, importantly, between cases. Variety in a court's behaviour suggests how this court perceives its own role in democratic society. Therefore, it is enlightening to evaluate which forces play upon constitutional judging.

The second part of this book aims to build a bridge between the normative framework and the case law analysis. In particular, the factors which may influence the Belgian Constitutional Court's behaviour are explored. These contours of judicial decision-making must be recognised in order to fully comprehend the role of constitutional courts in a democratic society. These underlying contours, which form the theoretical background on which the empirical analysis is based, are set out in two chapters, titled ‘The institutional framework of the Belgian Constitutional Court’ (chapter 2) and ‘Variation of judicial behaviour within the institutional boundaries’ (chapter 3) respectively.

In chapter 2, the institutional setting of the BeCC is discussed. This framework, decided upon by the legislator, shapes the background against which the Court takes its decisions. The tools available to the Court do not only indicate the prospects of deliberation, but also affect the choices the Court (can) make(s). To provide necessary background information against which the empirical results should be understood, the establishment and further development of this institutional framework is situated within the Belgian political context. More specifically, the consociational nature of the Belgian polity is reflected in the Court's composition and its institutional tools. Special attention will be paid to the parliamentary preparatory documents, which show how the rules regarding the BeCC's decision-making process should be understood and applied.

Type
Chapter
Information
Judicial Review and Strategic Behaviour
An Empirical Case Law Analysis of the Belgian Constitutional Court
, pp. 59 - 62
Publisher: Intersentia
Print publication year: 2019

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