Since the nineteenth century a system of administrative courts has developed in a number of European countries, playing a relevant role in the political system. However, with the exception of few important contributions (Righettini 1998, Rose-Ackerman and Lindseth 2010), the study of the relations between administrative courts and the executive branches appears under-investigated from a political science perspective.
We argue that a strategic interaction between administrative courts and governments takes place when the preferences of these actors are not aligned- as it is often the case of Italy compared to France- and especially when the administrative courts are also legal consultant of the governments (Councils of State of Italy, France, Belgium, the Netherlands and Greece). In particular, we expect that the presence of specific political circumstances: divided government and low alternation (Tsebelis 2002) tend to trigger the Councils of State intervention.
We test this hypothesis in the Italian case, using original data on secondary legislation production from 1988 to 2014 and we show that governments propensity to activate the Council of State varies according to government alternation and composition. In addition, using data on justices' extrajudicial offices for the same period, we test the impact of these variables on the propensity of governments to co-opt Council of State members inside ministries (as head of cabinets, head of legislative office, legal adviser). We believe that the tradition of reserving key positions inside government departments to Council of State members has been at the expense of the development of other types of expertise, more policy analysis oriented.
