Who is Afraid of European Constitutionalism? The Nordic Distress with Judicial Review and Constitutional Democracy
Forthcoming at Nomos Verlag, 2015, in Claudio Franzius, Franz C. Mayer, and Jürgen Neyer (eds.), Modelle des Parlamentarismus im 21. Jahrhundert. Neue Ordnungen von Recht und Politik; Recht und Politik in der Europäschen Union, Band 4
iCourts Working Paper Series, No. 13
20 Pages Posted: 19 Dec 2014 Last revised: 17 May 2017
Date Written: December 15, 2014
According to Ronald Dworkin, majoritarian democracies like the Nordic ones are founded upon the notion that parliamentary majorities are elevated above the other branches of government and that such majorities should not be subject to judicial review. The emergence of a powerful supranational judicial body at the EU level which, on a regular basis, sets aside national law and sovereign prerogatives, therefore shakes the very foundation on which majoritarian democracies rests. This article shows how conceptions of democracy in the Nordics can explain the critical Nordic attitude towards the legitimacy of the European Court of Justice and of European law more generally. Using Denmark as a case, I show that national courts in a majoritarian democracy only reluctantly cooperate with supranational judicial bodies by referring very few cases. I argue that Nordic courts forward few cases to the European court of justice both because they have little experience with judicial review at the national level but also – and more importantly – due to a widespread hostility towards (supranational) judicial review in general.
Keywords: European Constitutionslism, Denmark and judicial review, constitutional and majoritarian democracy, preliminary references, national courts
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