Between Constitutional Tolerance and Judicial Activism: The 'Specificity' of European Judicial Law

European Journal of Law Reform, Vol. 10, No. 1, pp. 97-125, 2008

Posted: 9 Jun 2008

See all articles by Giuseppe Martinico

Giuseppe Martinico

Scuola Superiore Sant'Anna di Pisa

Oreste Pollicino

Bocconi University - Department of Law

Abstract

When the discussion about the global expansion of judicial power comes across the European Court of Justice's case law, it is taken as example in order to show how the common law wind of USA Supreme Court is now blowing also on Luxembourg . In other words, through the emerging role of the Judicature in the old continent, it would be progressively developing a gradual americanization of European constitutional law.

Against this view it is worth emphasizing that the analysis of the European experience related to our topic constitutes a interesting field of research not only because it represents a meaningful expression of judicial globalization trend, but also (and perhaps mainly) because, within this scenario, it seems able to constitute a specific model of expansion of the judicial power.

In particular, the specificity of European judicature finds its roots in substantial and structural reasons, the first connected with the system of legal values proper of the European dimension, the second related to the specific DNA characterizing the European legal order.

Keywords: European judicial law, constitutional tolerance, judicial activism, techniques of hidden dialogue

JEL Classification: K00, K39

Suggested Citation

Martinico, Giuseppe and Pollicino, Oreste, Between Constitutional Tolerance and Judicial Activism: The 'Specificity' of European Judicial Law. European Journal of Law Reform, Vol. 10, No. 1, pp. 97-125, 2008, Available at SSRN: https://ssrn.com/abstract=1142354

Giuseppe Martinico (Contact Author)

Scuola Superiore Sant'Anna di Pisa ( email )

Biblioteca Scuola Superiore Sant'Anna
Piazza Martiri della Liberta, n. 33
Pisa, 56127
Italy
(+39)3494441388 (Phone)

HOME PAGE: http://www.stals.sssup.it/site/?q=node/15

Oreste Pollicino

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

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