Policy Formation and Reform Decisions

[ Ph.D Oliver Pamp ]

[ Ph.D Patrick Le Bihan ]

Political Origins of Independent Judicial Review: A Theoretical and Empirical Analysis

Brief Information
Corresponding Researcher Patrick Le Bihan
Type of Project PhD, funded by the Studienstiftung des deutschen Volkes
Status ongoing
Duration 2 years

The aim of this dissertation project is to explain the various levels of independence of courts and the differences in their rights to review the legal acts of the other branches of government. A cursory look at the empirical data is enough to show how much the provisions for independent judicial review vary in the reality of democracies. Constitutional judges are appointed by the president of the Republic and the presidents of the assemblies in France, whereas the Bundestag and the Bundesrat elect the judges by a majority of two thirds in Germany. In some countries such as the United States, the judges are appointed for life. In others, their terms are fixed and may or may not be renewable. More importantly, the accessibility to the judiciary may be restricted to some political institutions or open to normal citizens. Similarly, the jurisdiction of the constitutional courts can be restricted, as in Belgium, where the cour d’arbitrage can only verify the conformity of laws with some provisions of the constitution and not the constitution as such. Last but not least, the courts allowed to review the conformity of laws with the constitution differ a lot. In some countries judicial review is decentralized and any court is able to review laws or other legal norms, whereas in others only specialized constitutional courts are able to review the laws. The goal of this dissertation is to explain these differences. From a theoretical perspective the starting point of this project is to think about independent judicial review as an institution designed by a ruling coalition at some point in time in order to constrain the set of possible policies that could be taken in the future by other political groups. In a first step, I plan to model this theoretical intuition using the tools of game theory. In a second step, the theoretical argument will be tested using quantitative as well as qualitative methods.