Project: Legislating with the best intentions? Judicial review of the legitimacy of the legislator's aims

2021-11-01 – 2025-10-31

Abstract

The rule of law allows that laws enacted by parliament are subjected to control by the Constitutional Court. When he legislates, the legislator in principle has certain goals of public interest in mind. These goals are key to the scrutiny by the Court. That is because if laws infringe upon constitutional values, such as fundamental rights, the Court needs to know the (true) goals pursued by the legislator, in order to evaluate if his actions may be justified. It is very unclear, however, whether and how the Belgian Constitutional Court examines those goals precisely. This has not been studied yet. Such a lack of empirical knowledge, and more broadly of a theory for the Court to apply, is deeply problematic. Democracies do not always function perfectly. Current events around the globe attest to that. Especially for minorities, it is essential that courts are critical towards the goals the legislator claims to pursue. For these reasons, this project proposes (1) to develop a conceptual framework for judicial review of legislative intent based on a comparative approach and on abuse of powers doctrines under the European Convention on Human Rights and under Belgian administrative law; (2) to study the case law of the Court to map existing practice; and (3) to tailor that general theory to the Belgian context and propose how the Court could meaningfully engage in the review of the intentions of the legislator.