On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

The Giving Reasons Requirement

Martin Shapiro

Article 190 (now 253) of the EEC Treaty provides that: Regulations, directives and decisions of the Council and of the Commission shall state the reasons on which they are based . . .

Giving reasons might appear to be a rather simple and common-sense requirement. In reality it is densely packed with past legal and constitutional experience and replete with potential for development, particularly for development of a pervasive and deeply intrusive style of judicial review of administrative and legislative decision-making.

This article will first consider the various streams of past experience and then examine future implications. Much of our attention will focus on the American experience. In both evaluating US experience and speculating on the potential for further growth in the European Community (EC or Community) that this experience might imply, many European readers will say to themselves, 'This may work perhaps for American or for common law judges, but never for Continental or Civil Law judges.' Let me ask now that my reader willingly suspend disbelief in the comparability of American and Continental judicial mind-sets until fairly late in this piece, where we can begin to address the actual European experience. Beyond this suspension of disbelief, perhaps it is enough to note post-Second World War developments in European judicial review. Constitutional courts in Germany, Italy, and even in that seemingly unbreachable bastion of judicial self-restraint, France, as well as the European Court of Human Rights, the European Court of Justice (ECJ), and British courts reviewing administrative decisions have reached levels of judicial activism quite American in style. A plausible premise exists for European judiciaries to adopt more and more of the American style.

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On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
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