SHOULD THE EUROPEAN COURT OF JUSTICE DEVELOP A POLITICAL QUESTION DOCTRINE?

Alexandra Mercescu, Sorina Doroga

Abstract


This paper comparatively investigates the role of the so-called political question doctrine in contemporary adjudication. Equally hailed and criticized, the doctrine is an indirect discussion on the perennial question of the border between law and politics. Thus, this contribution firstly seeks to illustrate the idiosyncratic context in which the political question doctrine operates and to ascertain the instability of its meaning, as well as its evolving content over time. Second, this paper examines the scholarly debates that surround the existence of a political question doctrine in the practice of the European Court of Justice (ECJ), as well as the (in)desirability of an express articulation of the doctrine by the ECJ. This study is therefore imagined as an implicit comparison: the theoretical insights drawn from several common law jurisdictions inform the approach to EU law, while, in turn, the EU example is employed as a background against which to consider and revisit some of the doctrine’s limits and possibly even perils. Without attempting to provide a taxonomy of cases in which “political question” types of arguments may arise before the ECJ, this paper identifies – mostly through doctrinal study – examples of alternative strategies or concepts so far employed by the Court in order to deal with issues generally defined as “political”. Finally, this contribution weighs some of the advantages and disadvantages that the adoption of the doctrine would bring in practice, both in light of the Court’s position within the institutional system, and of the specific features of the EU’s legal construction as a whole.

Keywords


political question doctrine, law and politics, standards of review, US case-law, EU law, US Supreme Court, CJEU

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DOI: https://doi.org/10.13165/j.icj.2021.06.002

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