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Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union

Journal article
Authors Olof Larsson
Daniel Naurin
Mattias Derlén
Johan Lindhom
Published in Comparative Political Studies
Volume 50
Issue 7
Pages 879-907
ISSN 0010-4140
Publication year 2017
Published at Centre for European Research (CERGU)
Department of Political Science
Pages 879-907
Language en
Links dx.doi.org/10.1177/0010414016639709
Keywords Law and courts, EU politics and policy
Subject categories Political Science, Law

Abstract

We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications—by embedding its decisions in case law—when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.

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