The rule of law crisis is one of the major political conflicts occupying EU politics since several years. Professors Susanne Schmidt and Philip Manow (University of Bremen) use auto-limitation theory to throw new light on this crisis. Auto-limitation theory captures the delicate balance of powers, keeping constitutional courts in check, while allowing constitutional courts to play a check on the other branches.
Professors Schmidt and Manow take the example of the German constitutional court, one of the dedicated constitutional courts with the longest tradition to explain auto-limitation, and contrast it with the conditions, under which the European Court of Justice operates. The ECJ is in a more challenging situation, as it is much more difficult for it to assess its legitimate limits compared to national constitutional courts.
Having discussed auto-limitation at the MS- and at the EU-level, they analyse the changes when both levels interact and argue that incentives for auto-limitation are seriously reduced in a multi-level polity like the European one. They use data on the preliminary ruling procedure where member-state courts of all levels can invoke EU-law and address questions about the interpretation to the ECJ. This allows courts to escape the domestic context, and its constraints of auto-limitation in the face of conflicts between ‘politics and law’.
Schmidt and Manow analyse this judicial exit-strategy, and argue that it works in an asymmetrical fashion with view to left, right and eurosceptic governments. Because ordinary courts can invoke the preliminary ruling procedure, the conflict between the executive and the judiciary is not confined to a conflict between government and the constitutional court, but tends to affect the whole legal system. It thus translates into a fundamental conflict over the rule of law and endangers the independence of the judiciary in general.
Susanne is the Dean of FB08 Social Sciences and Professor of Policy Field Analysis at the University of Bremen. Her research interests include European Integration, courts as political actors and Policy Field Analysis.
Philip is Professor of Comparative Political Economy at the University of Bremen. He is interested in a wide range of topics across the humanities and the social sciences. His main research areas include the role of the welfare state in the political economy of advanced industrialized countries, political symbolism, modern parliamentarism, electoral systems, and the theory of democracy.