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Judicial Review and Strategic Behaviour

An Empirical Case Law Analysis of the Belgian Constitutional Court

Book | 1st edition 2019 | Belgium | Josephine De Jaegere

Traditionally, legal scholarship on judicial review is predominantly normative, concentrating on how courts should decide cases and to what extent they should show deference towards the legislative branch. Political scientists, on the other hand, seem more interested in what motivates judges and which factors influence their decisions. In contrast to the extensive body of literature on judicial behaviour in countries with a common law tradition (especially on the US Supreme Court), there is little systematic, empirical knowledge relating to European constitutional courts.

Focusing on the Constitutional Court of Belgium, the approach of this book is to combine normative ideas on how the Court should act with an empirical case law analysis. It explores the extent to which the Court performs as a deliberative institution, while operating within a consensual political system: Does the Court employ deliberative ‘judicial good practices’? Is the Court’s performance affected by strategic considerations? And if the Court’s rulings reflect strategic actions, does this behaviour correspond to the deliberative expectations weighing on the Court?

The answers to these questions contribute to a fundamental discussion about the appropriate role for judicial institutions in a democratic society. The book shows that the Court’s case law is (in part) shaped by strategic considerations. In salient cases, the Court prudently adapts various aspects of its decision in order to stimulate acceptance and compliance. The analyses reflect the fact that the Court is willing to engage in dialogue and that a consensus must be found amid a pluralist group of judges in each case. In addition, by continuingly taking into account the anticipated behaviour of its audience, the Court protects its institutional legitimacy for future cases.

Due to this interdisciplinary focus, the book provides essential insights to both legal scholars and political scientists.

Josephine De Jaegere is an advisor at the Belgian Ministry of Justice and an associated researcher at the University of Antwerp.

Digital version available on :

  • Strada lex Belgium

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Technical info
More Information
Type of product Book
Format Hardback
EAN / ISSN 9781780686943 / 9781780688619
Series name Intersentia Studies On Courts And Judges
Weight 785 g
Status Available
Number of pages xiv + 368 p.
Access to exercice No
Publisher Intersentia
Language English
Publication Date May 3, 2019
Available on Jurisquare No
Available on Strada Belgique Yes
Available on Strada Europe No
Available on Strada Luxembourg No


  • Table of contents and preliminary pages
  • Introduction
    Josephine De Jaegere
  • Part I. Normative Framework: The Deliberative Performance of Constitutional Courts
  • Chapter 1. Constitutional Review in Democratic Systems: Countering the Counter-Majoritarian Objection
    Josephine De Jaegere
  • Part II. The Contours of Judicial Decision-Making
  • Chapter 2. The Institutional Framework of the Belgian Constitutional Court
    Josephine De Jaegere
  • Chapter 3. Variation of Judicial Behaviour Within the Institutional Boundaries
    Josephine De Jaegere
  • Part III. Empirical Analysis of the Belgian Constitutional Court's Case Law
  • Chapter 4. Translating Case Salience into Measurable Explanatory Variables
    Josephine De Jaegere
  • Chapter 5. Case Outcomes
    Josephine De Jaegere
  • Chapter 6. Citation Practices
    Josephine De Jaegere
  • Chapter 7. Proportionality Analysis
    Josephine De Jaegere
  • Conclusion
    Josephine De Jaegere
  • Codebook
    Josephine De Jaegere
  • Bibliography
    Josephine De Jaegere
  • Index
    Josephine De Jaegere
  • About the Author
    Josephine De Jaegere