ʻJudicial Activismʼ in Europe: Not a Neat and Clean Fit

Abstract

Achieving a proper balance between enforcing the constitution and avoiding that the courts exercise a policy-making function is not without its difficulties. In the United States, this issue has gained much traction giving rise to intense activism talk. The relevant American literature has exerted a deep fascination abroad, also in the light of the current globalization of constitutional discourse. Yet, the article intends to advance two claims: first, it warns against an uncritical import of US-style notions of judicial activism to continental Europe; second, it argues that contemporary research on comparative judicial activism currently has low explanatory utility.

The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three reasons due to which activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe. Based on these reasons, an argument is made that US-style judicial activism is: (a) too dependent on the US form of government; (b) too divisive and as such unsuitable to the different European legal professional culture; and (c) misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.

Keywords: judicial activism, countermajoritarian, constitutional courts