Constitutional Judicial Behavior: Exploring the Determinants of the Decisions of the French Constitutional Council

Romain Espinosa

doi:10.1515/rle-2015-0034

Abstract

AbstractThis article empirically assesses the relevance of three theories of judicial decision-making for the French Constitutional Council. Our empirical analysis follows previous works by integrating more recent observations, and proposes a new methodology by exploiting new data for cases post 1995. After analyzing the 612 cases published between 1974 and 2013, we focus on cases post 1995 for which we know the exact composition of the court. Our results suggest that (1) political/ideological voting occurs, (2) Justices restrain themselves from invalidating laws, and (3) a court’s independence suffers from political power concentration in other institutions. All in all, these results suggest the need for a reform of the Constitutional Council to strengthen its independence.

Highlights

In the past two decades, a growing empirical literature has analyzed the determinants of Supreme Court rulings
We have found some evidence related to three theories of judicial decision-making: the attitudinal model, the judicial self-restraint theory and the opportunistic independence theory
This article has aimed at investigating the relevance of three theories of judicial decisionmaking for the French Constitutional Council: the attitudinal model, the judicial self-restraint theory, and the opportunistic independence theory

Summary

Introduction

In the past two decades, a growing empirical literature has analyzed the determinants of Supreme Court rulings These studies started from the widespread observation that Justices do not decide solely on legal grounds, but are influenced by personal, inter-personal and out-of-court matters. A considerable number of empirical investigations have aimed at determining whether judges are influenced by political or ideological factors when deciding a case These works have mainly sought to question the relevance of the Kelsenian theories of courts supported by legalists, who state that judges decide purely on legal grounds. These studies have contributed to validating the attitudinal theory, which claims that Justices are motivated by legal concerns, and by political and ideological matters

Objectives

Results

Discussion

Conclusion