Taking Rights less Seriously.A Structural Analysis of Judicial Discretion

Abstract. This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b ). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court.     

Economic grievances and political protest

How do economic grievances affect citizens’ inclination to protest? Given rising levels of inequality and widespread economic hardship in the aftermath of the Great Recession, this question is crucial for political science: if adverse economic conditions depress citizens’ engagement, as many contributions have argued, then the economic crisis may well feed into a crisis of democracy. However, the existing research on the link between economic grievances and political participation remains empirically inconclusive. It is argued in this article that this is due to two distinct shortcomings, which are effectively addressed by combining the strengths of political economy and social movement theories. Based on ESS and EU-SILC data from 2006–2012, as well as newly collected data on political protest in 28 European countries, a novel, more fine-grained conceptualisation of objective economic grievances considerably improves our understanding of the direct link between economic grievances and protest behaviour. While structural economic disadvantage (i.e., the level of grievances) unambiguously de-mobilises individuals, the deterioration of economic prospects (i.e., a change in grievances) instead increases political activity. Revealing these two countervailing effects provides an important clarification that helps reconcile many seemingly conflicting findings in the existing literature. Second, the article shows that the level of political mobilisation substantially moderates this direct link between individual hardship and political activity. In a strongly mobilised environment, even structural economic disadvantage is no longer an impediment to political participation. There is a strong political message in this interacting factor: if the presence of organised and visible political action is a decisive signal for citizens that conditions the micro-level link between economic grievances and protest, then democracy itself – that is, organised collective action – can help sustain political equality and prevent the vicious circle of democratic erosion.     

Class and social policy in the knowledge economy

Recent studies of welfare state attitudes in the knowledge economy find very high generalized support for generous welfare state policies, both among the working and the middle classes. Has class become irrelevant as a predictor of social policy preferences? Or do we simply mis-conceptualise today's class conflict over social policy? To what extent has it changed from a divide over the level of social policy generosity to a divide over the kind of social policy and – more specifically – over the relative importance that should be given to different social policies? Answering these questions is not only relevant to understand welfare politics in the twenty-first century, but electoral politics as well: only when we understand what working- and middle-class voters care about, can we evaluate the role distributive policies play in electoral processes. We use original survey data from eight West European countries to show that middle- and working-class respondents indeed differ in the relative importance they attribute to social investment and social consumption policies. Middle-class respondents consistently attribute higher absolute and relative importance to social investment. We also show that this emphasis on investive policies relates to the middle class expecting better future economic and social opportunities than the working class. This divide in anticipated opportunities underlies a new kind of working- versus middle-class divide, which contributes to transforming the class divide from a conflict over the level of social policy to a conflict over the priorities of social policy.