Governing with Judges: Constitutional Politics in Europe

Governing with Judges: Constitutional Politics in Europe

Governing with Judges: Constitutional Politics in Europe

Governing with Judges: Constitutional Politics in Europe

Synopsis

'The author weaves a fascinating and intricate causal account... this is a clearly written and painstakingly researched book. In addition to its substantive findings, it is also of methodological interest... essential reading for any understanding of contemporary European democracy.' -Democratization'This is an informative and impressively wide-ranging and cross-disciplinary analysis that deserves a warm welcome as an important addition to the literature on political and constitutional theory' -Political Studies'A bold and provocative study... a timely and challenging treatment of a topic of great importance in contemporay Europe.' -West European PoliticsConstitutional Politics in Europe is the first comparative study written by a social scientist on the topic of European constitutional courts, and their role in protecting human rights and defending new democratic institutions. Focusing on France, Germany, Italy, Spain, and the European Union, the author traces the enormous impact of these courts on both legislative and judicial processes and outcomes, and explains why this impact continues to expand.

Excerpt

In this book I set out to explain certain deep transformations in governance that have resulted from the establishment of enforceable constitutions in Europe. At a more abstract level, the book is about the sources and consequences of the construction of judicial power, which I see as symptomatic of even more generic social processes. Most important, third-party dispute resolution and rule-making constitutes one, often privileged, mechanism of adapting rule systems to the needs and purposes of those who live under them. I have drawn connections between my concerns and the concerns of public law and comparative political science. But the book's broader purpose is to demonstrate why dispute resolution and judicial rule-making are often basic to 'politics-within-institutions', and to more general processes of institutionalization and political change.

With strong encouragement from my editors, I have kept this book short. Although the text is now longer than we originally planned, it remains incomplete (and, to my mind, inadequate) in at least three important respects. First, there is no sustained discussion of federalism, which has always been central to constitutional politics in Germany, and is increasingly so in Spain. I focus far more attention on the adjudication of constitutional rights. Second, I relegate the European Convention of Human Rights to a sentence and a footnote, despite the Convention's growing impact on the work of the judiciary. Although social scientists have produced several books on European constitutional courts in recent years, it is unfortunate that none of these examines the Convention with any seriousness. In my case, an even cursory discussion of the regime (which, with reference to the operation of national judiciaries, raises a set of enormously complex issues) was impossible, given space limitations. Third, I do not elaborate a theory of constitutional interpretation, although the makings of such a theory are implied. Instead, I typically infer, from patterns revealed as case law accretes, what constitutional judges are doing as they resolve constitutional disputes, given the theory of constitutional politics that underlies my approach.

My editors also wanted a book that would both be scholarly and appropriate for use in classrooms at the advanced undergraduate and graduate levels. In writing the text, I assumed that the average reader would not have

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