Developments in abstract judicial review in Germany, Austria and Italy

Corkin, Nicola Christine (2011). Developments in abstract judicial review in Germany, Austria and Italy. University of Birmingham. Ph.D.

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Abstract

This thesis investigates the reasons for the change in decision-making patterns in abstract judicial review in Germany, Italy and Austria in the last three decades. The literature on constitutional courts suggests that there are six factors influencing the decision-making of a constitutional court judge: personal political attitudes of the judges, direct influence by political institutions, Black Letter of the Law, Precedent, changes in public opinion and the harmonisation of national law with European law. The empirical data shows that throughout the last three decades the conditions in which legislation is formulated has become more complex through the harmonisation of national law with European Law. This causes the courts to react in three distinct ways:

1. The style of decisions is more interpretative
2. More laws are, at least in part, found unconstitutional
3. The pattern of decisions is leaning towards more unconstitutionality rulings so as to clarify the political framework for future legislation.

Worry is expressed by the courts that not all the cases reaching them are referred to them in good intention. Politicians are increasingly using the complexity of the political system to refer cases to the courts on which they would prefer not to take a decision.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

Supervisor(s):