West European Politics · 1992 · 65 citations · 4 references
LawConstitutional LawPolitical ScienceJudicial PoliticsJudicial ReviewLawmakingConstitutional CourtsJudicial Decision-makingJudicial InstitutionsJudicial PolicymakingJudicial ReformJudicial Review Of LegislationConstitutional Court IndependenceJudicial Policy-makingJudicial PoliticizationJudicialization Of PoliticsPolitical Questions
The Constitutional Court is the most powerful policy‑maker among German courts. This analysis argues that judicial review constitutes a process of judicialisation of politics. Parliamentary law‑making overemphasises legal arguments while judges overstep their competence, driving this trend. The Constitutional Court increasingly decides political questions, narrowing alternatives, and its growing influence can impede political reform, even though it does not always serve elite interests.
The most powerful policy‐maker among German courts is the Constitutional Court. It is the thesis of this analysis that the danger of judicial review is a process of judicialisation of politics. More and more political questions are decided by the Constitutional Court and, thereby, political alternatives are reduced. Members of Parliament contribute to this development by carrying too far the consideration of legal arguments in legislation and judges by exceeding their competence in several cases. While it is an inadequate simplification of reality to claim that judicial review always serves the interests of the political elite, it is the growing influence of judicial review in policy‐making that sometimes prevents political reform.
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