Judicial Activism at the European Court of Justice
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Judicial Activism at the European Court of Justice

Edited by Mark Dawson, Bruno De Witte and Elise Muir

Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
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Chapter 9: A cautionary tale: some insights regarding judicial activism from the national experience

Maartje de Visser

Extract

Courts, whether national or European, are sometimes subject to charges of judicial activism. Adopting a comparative perspective, this contribution charts the ways in which constitutional courts in the Member States have sought to mitigate or pre-empt charges of activism. The primary purpose is to identify attractive solutions or lessons the ECJ may draw from dealing with this perception of judicial activism. It is important at the outset to be clear about what is meant by ‘judicial activism’. Judicial activism is often used as a slogan to communicate dislike or disagreement with a particular judgment or line of case law. While such a subjective approach has rightly been criticized, we should acknowledge that politicians, the media and the public regularly employ the term in this derogatory sense. As such, judicial activism is closely connected to the way in which these actors perceive the legitimacy of the court and its judgments, whereby judicial activism is commonly seen as a legitimacy-eroding factor.

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