The power of judges to review government action (depending on the context also described as constitutional or administrative review) is a classic topic of academic interest. We know that judges often rely on specific tests, such as proportionality or reasonableness, to come to a conclusion. It is also generally known that the intensity by which judges engage in such review can vary. In some circumstances, government action is reviewed by means of a full ‘necessity’ test, while in other cases it is upheld as long as the judge does not consider it to be ‘manifestly’ unreasonable.

The relevance for the rule of law of such variations is clear. We need only look at the legal implications of the on-going COVID-19-pandemic. Governments globally have drastically intervened in the daily lives of their citizens, sometimes curbing fundamental freedoms to unprecedented degrees. The legality of sanitary measures was a central point of argument and in many cases, that question was taken to court. There, questions of intensity of review were abundant. For example, Belgian courts repeatedly (but not always) emphasised the large margin of appreciation of the executive branch. Central to their reasoning was the complexity to judicially assess scientific facts, the democratic legitimacy of the decision maker and the nature of the allegedly violated rights. Most of the time, this resulted in a conceptually lowered intensity of review.

Variations of scrutiny have been the object of closer research, for example, in U.S., U.K. and German legal doctrine. In many other jurisdictions, it remains a remarkably under-researched phenomenon. Belgian legal doctrine has hypothesised that such fluctuations are also present in the case law of the Constitutional Court, but further research into that question is warranted.

To increase our understanding of fundamental rights and the role of courts in a democracy, a better understanding of variations in intensity of review in a comparative context is needed. At ConstitUGent, the research centre in constitutional law of Ghent University, a project is currently on-going to empirically map and explain the variations in the intensity of review in the case law of the Belgian Constitutional Court.

To enrich this research, on Friday 29 April 2022, the centre organises a one-day expert seminar concerning intensity of review in public law. During that seminar, we will focus on three themes relating to variations in intensity of review as they have already been identified in the work of e.g. Alexy, Klatt and Schmidt, Daly and Rivers. The first concerns structural variations in intensity of review. Which constitutionality tests do courts use to bring variation in the margin of appreciation of political decision makers? The second concerns epistemic variations in intensity of review. How can courts attach different levels of credibility to the view of the political decision makers? The third concerns the reasons for these variations. Why do courts vary the intensity of their review? The aim of the seminar is to provide a platform to scholars, including early career scholars, to present research that engages with any of those questions.