Europeanization of Judicial Review by Nicola Ch Corkin

Author:Nicola Ch Corkin [Corkin, Nicola Ch]
Language: eng
Format: epub
Tags: History & Theory, Judicial Branch, Comparative Politics, Political Science, American Government
ISBN: 9781134680566
Google: 7iFWBQAAQBAJ
Goodreads: 24732324
Publisher: Routledge
Published: 2014-11-13T00:00:00+00:00

1.5. Political Institutions as an Antecedent Variable

A change in the attitudes of the political institutions toward the constitutional courts seems to be more promising as an antecedent variable. The political surroundings of the court has changed extensively in Austria and to a lesser extent in Italy. The jurisprudence of the Austrian Constitutional Court underwent two changes in the last 30 years, one in the late 1970s and one in the mid-1990s (Gamper, 2007; Gamper and Palermo, 2009: 48). Prior to the 1970s, the decisions rendered by the Austrian Constitutional Court displayed little to no interpretation and avoided political controversy. An article was simply stated as having one meaning without explanation or recognition of a different possible meaning—very much like the Austrian Constitutional Court is phrasing its decisions now. A change of this attitude toward cases was notable in the Austrian Constitutional Court in the late 1970s and early 1980s. Austria’s political system was and is based on the constitutional rule that the constitutional court can only interpret and annul laws that are not of constitutional ranking. Therefore, all controversial or difficult laws, such as many tax or budgetary laws, were passed as being of constitutional rank. The prohibition to concern themselves with laws of constitutional rank was accepted by the constitutional court until the late 1970s and early 1980s, when the judges began to argue for a distinction between laws simply passed as constitutional and those with truly constitutional character (Gamper, 2007). The early 1980s then resulted in various laws with constitutional rank being annulled by the court nonetheless. This caused the first change in attitude toward the court. It had now moved from a very inactive and uncontroversial court to one engaged in the political process through judicial review. The court defended its right to annul even laws with constitutional rank until the mid-1990s, when a case on linguistic harmonisation resulted in a public outcry and protest against the court and especially its president (Gamper and Palermo, 2009: 49). As a result, the more restrained elements at the court gained in influence, supported by the appointment to the bench of various advocates of restraint to replace retiring judges (A1, 2, 4). As a result, the court has reverted to the pre-1980s style and attitude, at least in part. Its style of judgement changed back to the simple statement of the meaning of laws rather than a discussion thereof.

In the Austrian case, it seems, therefore, to be an external factor, the insistence of the political institutions to deny the court its jurisdiction, which led to the court annulling more laws. This seems to support the assumption that no matter the importance of the legal variables of precedent, Black Letter of the Law, or intent, the courts cannot act against the will of the political institutions consistently. This is supported by interview data, when one of the judges tries to explain the decision making process:

The most important influence is precedent . . . Even academic writings are without importance for the decision .

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