The division of power between the legislator – represented by ‘the political’ – and the judge – represented by ‘the legal’ – is a centuries-old dilemma. The question on which position both powers take in the constitutional context is an everyday reality for the (constitutional) lawyer. The balance between these powers often turns into a tense relationship – a tension that becomes especially tangible after courts important judgments, such as the Urgenda case. Cases seem increasingly to end up in court because politicians have no answer to the issues at hand. If in such a case a court makes a decision, then politicians are eager to emphasise that the court has illegitimately taken up the role of the democratically elected legislator and that it is up to the people to make a decision; not the court. The question, however, is whether this criticism is always justified. Do politicians indeed try to protect the institutional balance as set out in the Constitution? Or do they act as sore losers, looking for a scapegoat for their own failure? Continue reading
About Leonie Huijbers
In her research Leonie Huijbers focuses on procedural-type review in fundamental rights cases. Procedural-type review appears to be a new trend in the case-law of the European Court of Human Rights (ECtHR) concerning the question whether a proportional decision has been made by the national authorities in a specific case. This question is no longer (only) answered on the basis of the substantive balance struck in that decision, but the ECtHR also looks into the quality of the decision making process leading up to that decision. The aim of the research is to develop a framework for the application of procedural-type review by courts in fundamental rights cases. For that purpose in this research the foundations of procedural-type review in fundamental rights cases is examined more closely. A legal theoretical perspective is taken in relation to the question how this form of judicial review relates to the role of courts and their legitimacy. Subsequently a theoretical framework is developed in regards of procedural-type review in fundamental rights cases. In order to transpose this theoretical discussion into a practical application of it, a thematic analyses is made of the application of this form of judicial review by the ECtHR and the Supreme Court of the United States. Next to her research project Leonie Huijbers is working on variety of human rights topics such as the Dutch policy concerning travellers' camps, religious freedom and strategic litigation.