Realising Legal and Social Change

Abstract

Abstract This chapter evaluates the institutional capacity of the legislature and the judiciary. It explains that the legislature is better at initiating legal change and realising social change; that is, it is a better lawmaker than the Court of Justice of the European Union, and legislation is more likely than case law to generate its intended effects domestically. Together with the account of institutional legitimacy from Chapter II, these findings are elaborated in a theory of judicial deference that rests on three principles: institutional legitimacy, institutional capacity, and institutional collaboration. More specifically, the form of judicial deference defended is in line with so-called restrictive institutionalism, which favours the imposition of and adherence to relatively precise legislative rules for reasons associated with the rule of law and democratic legitimacy. Finally, it is shown that restrictive institutionalism is compatible with European Union primary law and appropriate for adjudicating both maximum and minimum harmonisation.