Integrating or Polarising? How to Promote Integrative Decision-Making in Constitutional Courts

For constitutional courts to be able to activate the integrative function of the constitution they have to interpret and apply, and to avoid the risk of fostering polarization, they must work in a collegial, consensus-oriented, deliberative way. Some courts do better on that score than others. Why is that so? The article draws attention to institutional frameworks explaining the differences in underlying cultures of deliberation. A fundamental difference between courts in common law countries with their historical roots in the tradition of seriatim decision-making, and courts outside the common law world with their less individualist decision-making traditions is that the former need a majority only for the outcome of a decision, whereas the latter need a majority for the reasons, as well. Many other institutional features, mentioned in the final section of the article, also matter. The differences with respect to majority requirements, however, provide a particularly telling example of how institutional frameworks shape judicial behavior in unnoticed ways.