The politics of judicial review in inter-war Europe

Thesis

Why do some politicians choose to tie their own hands by empowering courts to review the constitutionality of legislation? This is a persistent question in judicial politics. According to a popular rational choice theory, politicians accept judicial constraints on their power because they seek “insurance” against costs they might incur during future periods in opposition. Hence, the key variable favouring support for judicial review is electoral alternation.

This theory fails to explain some cases where politicians oppose judicial review despite a competitive, democratic political system. I argue that some of these cases are explained by the expectation of a slant of judicial review against the policy agenda of a part of the political spectrum. Such a slant is more likely where judicial review primarily safeguards policy-interactive legal provisions, such as rights, rather than policy-indifferent provisions, such as the provisions demarcating the powers of different levels of government in federations. Hence, judicial review is more likely to find broad political support where it is expected to safeguard primarily the boundaries between state and federal powers, rather than rights.

Using secondary and primary sources, I test this argument in case studies of three inter-war democracies – Norway, Weimar Germany, and the First Austrian Republic. In the first two countries, left-wing politicians, especially socialists, opposed judicial review for at least some time, whereas Austrian Social Democrats supported judicial review throughout the First Republic. My argument partly explains these differences: In Norway and Germany, judicial review emphasised safeguarding rights, raising concerns that the courts would obstruct progressive social policies. In Austria, judicial review hardly protected rights against the legislature; its purpose was primarily the adjudication of federalism-related conflicts. Hence, Austrian Social Democrats did not expect it to obstruct their policy agenda. Instead, they benefited from judicial safeguards of their control over the state of Vienna.

Authors: Bubenheimer, F

• DOI: 10.5287/ora-9ee9vmyov
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Weimar Germany; constitutional history; judicial politics; inter-war Norway; constitutional courts; judicial review; First Austrian Republic; inter-war Europe; constitutional rights; constitutionalism
• Subjects: Political science