Beyond Significant Relationships, Tolerance Intervals ...

Beyond Significant Relationships, Tolerance Intervals and Triadic Dispute Resolution: Constructing a Comparative Theory of Judicial Review in Post-Communist Societies.1

Christian Boulanger Ph.D. candidate, Free University of Berlin Schönhauser Allee 187, 10119 Berlin, Germany Currently Visiting Researcher, Institute for Social Science, University of Tokyo, Japan E-mail: c. boulanger @ web. de

Paper prepared for delivery at the Law and Society Association 2003 Annual Meeting, Pittsburgh, June 5-8, 2003

3rd Draft, June 3st, 2003

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The bulk of this paper was written as a visiting academic at the Central European University in Budapest, in late 2001 and early 2002. I would like to thank Nenad Dimitrijevic, dean of the Political Science Department, for his hospitality. The title of the paper as compared to how it was announced has somewhat changed to include “significant relationships”, by which I mean the goal of behavioural research: finding significant correlations between variables in the data. I have numbered the paragraphs so that you can refer to a specific argument in my text more easily when raising an objection.

Table of Contents:

I. Introduction: ........................................................................................................................ 1 II. Social scientific comparative theories of judicial review .................................................. 2 Theories, methods, and concepts........................................................................................ 3 Theoretical Approaches to Judicial Review ....................................................................... 4 The “Legal Model” vs. the “sociological” model .......................................................... 5 Behavioralist-empiricists ................................................................................................ 7 Formal-Rationalist and game theoretical approaches .................................................. 10 Dispute-resolution in Triads ............................................................................................. 15 III. A framework for the study of constitutional courts in post-Communist states .............. 17 Actors ........................................................................................................................... 18 Institutions/Norms/ “Law” ........................................................................................... 22 Socio-cultural context .................................................................................................. 23 International Factors ..................................................................................................... 25 IV. Conclusion ..................................................................................................................... 25

Abstract This paper surveys three approaches that have been used in explaining the development of post-Communist constitutional justice. One is what I call the ‘behavioralist-empiricist’ tradition, which relies on the collection of data in as many cases as possible, sampling, coding, and the analysis of significant relationships between variables. The authors I discuss here are Ishiyama/Smithey and Herron/Randazzo. The second is the ‘formal-rationalist’ tradition, relying on the tools of formal political theory and game theory. Here, I use the example of the scholarship of Epstein/Knight and Vanberg. The third is the triadic-disputeresolution paradigm, which, while it has not yet been explicitly used to explain postcommunist development, has been applied in the Western European context by Alec Stone Sweet. I argue that while every approach has something to offer to the social scientist interested in explaining post-Communist constitutional politics, none of them is sufficient on their own to understand the dynamics of these processes. In discussing these approaches, I try to show their weaknesses with an eye to how these weaknesses could be avoided in a more comprehensive framework, based on the tradition of historical/sociological institutionalism. In the conclusion, I present a recent book by Radoslav Procházka which, in my view, pursues the agenda I propose in this paper, and show how his analysis could be enriched by the framework presented in this paper.

Christian Boulanger, Constructing a Comparative Theory of Judicial Review

"So it is that in spite of its nearly universal appeal, judicial review remains an enigmatic institution. It operates principally in states with democratic philosophies, yet it claims authority to frustrate, in certain situations, the will of the majority. Its decisions are often preeminently political, yet they are made by men not themselves responsible to the electorate. The theoretical power of the judge of constitutionality is awesome, yet in the end he has neither sword nor purse and must depend on others to give his decisions meaning." Mauro Cappelletti, The Judicial Process in Comparative Perspective, p. 149.

I. Introduction: 1. In his classic book on "The Judicial Process in Comparative Perspective," Mauro Cappelletti discusses what Alexis Tocqueville has called the ‚Mighty Problem’ of Judicial Review: "the role and democratic legitimacy of relatively unaccountable individuals (the judges) and groups (the judiciary) pouring their own hierarchies of values or 'personal predilections' ... into the relatively empty boxes of such vague concepts as liberty, equality, reasonableness, fairness, and due process" (Cappelletti 1989:150). Scores of legal theorists and political philosophers have given conflicting answers to the question of the legitimacy of judicial review. Cappelletti himself is skeptical whether there can be any answer to this question in the abstract: "The solution to the 'mighty problem', and to the host of questions, doubts, and challenges that are connected to the phenomenon of judicial review, can only be a relative solution, determined by contingent variables such as a given society's history and traditions, the particular demands and aspirations of that society, its political structure and processes, and the kind of judges it has produced." 2. Cappelletis remarks point to the kind of contribution social scientists can make to this debate. If it is true, as it is nowadays widely acknowledged, that the role the constitutional judiciary plays in a certain society has as much to do with the concrete political, social, economic and cultural environment in which it operates, as with abstract principles of political and legal philosophy, than the phenomena of judicial review, a "working method of subordinating state action to higher principles" (Cappelletti, 1989:120) should be studied using empirical research and the theory and methods of the social sciences, in particular those of political science and sociology. This move to empirical investigation into Cappelletti's "enigmatic institution" has begun in the 1960ies under the influence of behavioralism (Schmidhauser 1987), but an extensive and multi-disciplinary debate has emerged only in the last couple of years. Because of the nature of the subject, studies on the post-Communist2 judiciary are of even more recent origin. 3. I see three approaches which could influence large-scale theory construction in the emerging field of study, and which all derive from different sociological traditions. One is what I call the ‘behavioralist-empiricist’ tradition, which relies on the collection of data in as many cases as possible, sampling, coding, and the analysis of significant relationships between variables. The authors I discuss here are Ishiyama/Smithey and Herron/Randazzo. The second is the ‘formal-rationalist’ tradition, relying on the tools of formal political theory and game theory. Here, I use the example of the scholarship of Epstein/Knight and Vanberg. The third is the triadic-dispute-resolution paradigm, which, while it has not yet been used explicitly to explain post-communist development, has been applied in the Western European context by Alec Stone Sweet. I argue – not surprisingly – that while every approach has something to offer to the social scientist interested in explaining post-Communist 2

“Post-Communism” is a problematic term the same way “Eastern Europe” is. See, for example King 2000. I use the term here just out of convenience to denote the countries of Central and Eastern Europe, and the GUS-States.

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constitutional politics, none of them is sufficient on their own to understand the dynamics of these processes.3 In discussing these approaches, I try to show their weaknesses with an eye to how these weaknesses could be avoided in a more comprehensive framework, based on the tradition of historical/sociological institutionalism. In the conclusion, I present a recent book by Radoslav Prochazka which, in my view, pursues the agenda I propose in this paper, even though he uses a different vocabulary, and show how his analysis could be enriched by the framework presented in this paper. 4. The thesis in this paper could be summarized in the following way: the development of the constitutional judiciary in the post-Communist area has to be analyzed in a framework which reaches beyond strict methodological individualism (be it “attitudinal” or “strategic”), quantitative sampling, or abstract modeling. Otherwise we risk to produce trivial or misleading results. Meaning and process, that is, individual and collective world-views, and the historically contingent, but path-dependent developments of events make explanations more complex than these strict forms of theorizing allow for.4

II. Social scientific comparative theories of judicial review 5. While courts are the traditional object of study for legal scholars, social scientists have much later started investigating courts and the legal system with their theories and methods, and only very recently have become interested in constitutional courts (Epstein et al. 2001, Stone Sweet 2000). To be sure, the sociology of law has always looked at ordinary courts. But because of their placement outside of the ordinary legal system, their more overtly political role, and the political nature of the appointment process, constitutional courts and judicial review might not be suitable to be analyzed with the same tools that the sociology of ordinary courts provides. Far from the ideal of "applying laws to facts", Constitutional Courts or their functional equivalents 5 , through the institution of constitutional review, are placed in the center of political controversies. Their decisions are highly public and singular, while ordinary courts produce a constant stream of decisions on similar topics, mostly without much attention from either politics or the public. Even though constitutional courts are mostly (but not always6) called "courts" and usually are organized as "courts", they are of a very different nature, just as the nature of "constitutional law" differs drastically from that of, for example, "contract law". In short, this means that theories from political science, dealing with political institutions, might in many respects be more adequate than the traditional theories of the sociology of courts, even though it is important that this literature should not be ignored by political scientists working on constitutional courts.

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This seems a trivial point to make, but (except in Stone Sweet’s work) there seems to be very little interest in the theory and method of the other approaches in the papers surveyed.

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Proponents of parsimonious models will probably respond that of course the world is always more complex than the model, and of course we need other approaches, but as far as I can see, this does not keep them from pursuing a very narrow agenda. I argue that the problem is the quest for the parsimonious model itself. For a similar debate see "Symposium on Historical Sociology and Rational Choice Theory", American Journal of Sociology, 104/3, or Tate / Haynie 1993, Gillman 1994, Tate / Haynie 1994.

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For the purpose of this paper, I call all institutions ‚constitutional court’ which have the power to invalidate statutes on constitutional grounds (constitutional review). In this function, the Supreme Court of the United States, or the constitutional chamber of a Supreme Court (such as the …) is also a constitutional court.

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See for example, the French conseil constitutionel or the Polish trybunal constytucyjni.

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6. As noted above, the bulk of explicitly social scientific literature on Post-Communist Constitutional Courts is of very recent origin.7 Because of the still emerging nature of this field of literature, the contributions consist of the applications of theories derived in different contexts and stemming from diverse theoretical traditions which cannot easily be connected with each other. In fact, I argue that if one is not aware of the differences of these theoretical approaches, trying to “accumulate knowledge” by uncritically accepting conclusions taken out of their theoretical context can produce misleading results. To make sense of this literature, a few remarks on the philosophy of the social sciences are necessary. Theories, methods, and concepts 7. Social scientific approaches have two dimensions: theory 8 in the narrower sense (as a bundle of premises and causal hypotheses), and method, or in other words, assumptions about "how the world works" and about "how we can know find out about it". Different methods can lead to the same theoretical insights, however, this must not always be the case: alternative methodologies create different "social facts" ("empirical data"), which, in turn, will create, in the researcher's eyes, different causal relations between those facts ("the working of the world"). On the other hand, alternative theoretical frameworks might lead researchers to look for different empirical data, some that will confirm only those theoretical assumptions that the researcher went out to prove in the first place. These limitations of the social sciences are well known and should caution us against any claim of superiority of the existing metatheoretical paradigms or frameworks in socio-legal research (Suchman 1997). 8. Mediating between social scientific theory and method are concepts, which are tools to extract from the endless number of possible empirical observations those facts that make social theorizing and comparison possible in the first place (Sartori 1970). In other words, theory does not hypothesize causal relations between “facts”, but between concepts, at least as soon as one goes beyond the use of words to describe visible objects. One could distinguish two kinds of concepts, the inductive idealtypical concept which abstracts certain aspects of empirical phenomena and does not necessarily contain any theory about them (Ringer 1997, Weber 1988 and deductive models which abstract universal features of such phenomena, and, in most cases, postulate certain hypotheses about the relationship between the different components of the model. I will use the terms "institution," "court," and "judicial review" as illustrations. 9. The literature on institutions is immense and cannot be discussed here 9 , and equally diverse concepts of "institutions" exist. Two of them are relevant for my inquiry. On one hand, there is Douglass North's "minimalist" definition of institutions as the "rules of the game" or "humanly devised constraints that shape human interaction" (North 1990:3). This is different from a more holistic understanding of an "institution" as an "organizations", i.e. as a body of people organized according to institutional norms, and having its own institutional mission and practices (Gillman 1999). The first definition, it is obvious, does not have any necessary connection to the empirical world, since models using this concept can be constructed (and are being constructed) in the abstract. Its empirical application is clear-cut. 7

Most of it is scattered across various edited volumes (e.g. Hesse, Schuppert und Harms 2000, Krygier / Czarnota 1999 Priban / Young 1999) and has been published in journals.

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By theoretical, I refer, throughout this paper, to empirical theory, i.e. theory that attempts to explain observable phenomena. Normative or dogmatic theory, i.e., that of (political) philosophy and jurisprudence, which deals with the "ought"- side of the is/ought – dichotomy, will be specifically referred to as such.

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Key works in the debate which also contain a discussion of the literature: for the Anglo-American context see North, 1990 and March & Olson, 1984; for the German see ((reference not available)).

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Either such rules of the game exist or they don't. The second concept, in contrast, does not allow a clear-cut answer as to whether the institution in fact is working according its institutional norms or not. This can only be determined empirically. In most cases, no universal hypotheses can be drawn from the ideal type. Instead, what is generalized is the probabilistic causal connection of a social phenomenon displaying certain features of the ideal type, with other social phenomenon (Ringer 1989, Ringer 1997). 10. In his comparative study on courts Martin Shapiro (Shapiro 1981:1) has criticized what he perceived as an unrealistic ideal type of "courts" involving "(1) an independent judge applying (2) preexisting legal norms after (3) adversary proceedings in order to achieve (4) a dichotomous decision in which one of the parties was assigned the legal right and the other found wrong". As a description, this image of a court resembles many if not most modern western courts. It is therefore the ideal type of this kind of judicial institution. As Shapiro rightly points out, however, this concept is not adequate to describe the functional equivalents of today's "western" courts in other places or times. He proposes a different concept of "court", one that stresses its social function: The root concept employed here is a simple one of conflict structured in triads […] Cutting quite across cultural lines, it appears that whenever two persons come into a conflict that they cannot themselves solve, one solution appealing to common sense is to call upon a third for assistance in achieving a resolution So universal across both time and space is this simple social invention of triads that we can discover almost no society that fails to employ it And from its overwhelming appeal to common sense stems the basic political legitimacy of courts everywhere. In short, the triad for purposes of conflict resolution is the basic social logic of courts, a logic so compelling that courts have become a universal political phenomenon (Ibid.) In this way, Shapiro defines courts as those institutions which allow triadic conflict resolution, therefore providing a model of what courts do and why they come into existence. I will come back later on the extension, by Alec Stone Sweet, of this model to constitutional politics. 11. C. Neal Tate has defined "Judicial Review" as "ability of a court to determine the acceptability of a given law or other official action on grounds of compatibility with constitutional norms" (Marshall 1995) or Israel (Hirschl 2001). Both Tate and Stone thus define judicial review by the rules that are introduced into the game between political actors once the institution is set up: no longer is the parliament or the government the final decisionmaking body. Instead, a judicial institution – the constitutional court- becomes the final arbiter of legislation and/or political acts (depending on the jurisdiction defined by legal rules).10 Theoretical Approaches to Judicial Review 12. Martin Shapiro has remarked that “the basic question we are really asking when we ask what causes successful constitutional review is, why ‘so many people in so many parts of the world entrust so much of their governance to judges’” (Shapiro 1999:201). This question, when applied to the constitutional judiciary in Eastern Europe, can be broken down to encompass three different perspectives: (1) Why and how was the institution of judicial review created during the constitution-making processes? (institutional creation) , (2) What factors shaped the institutional performance and maintenance in the period under 10

This does not exclude the possibility that judgements are reversed by constitutional amendments. But the high political costs involved work in favour of the finality of the judicial decision rather than the parliamentary one.

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investigation, the first ten years of the post-Communist political transformation? (institutional development); and (3) What impact did the constitutional courts have on political outcomes in the transforming countries (institutional impact)? 13. The following discussion tries to discuss some of the relevant recent literature in the light of a) briefly, how this literature can be characterized in terms of theory, methods, and conceptual apparatus, b) what hypotheses these approaches offer for the research questions outlined above, and c) the reasons for following or not following these approaches' methodological or theoretical lead. The “Legal Model” vs. the “sociological” model11 14. The most radically different perspectives have been those of social scientists versus those of jurists. Social scientists studying law may disagree among each other about the appropriate approach, but they agree on the rejection of the so-called "legal model". For the purposes of this discussion, I conceptualize the legal model as the approach idealtypically used by jurists (Rechtswissenschaftler). There is, of course, not one single way jurists think or have thought about law across time and place. Not only is the continental civil law legal tradition different from the common law of Anglo-Saxon countries (Merryman 1985, Weber 1978,II:784-895), but also each legal discourse in different countries has very distinct features. One starting point, however, to characterize the legal approach is the distinction offered by Max Weber between the “legal and sociological points of view”: When we speak of 'law,' 'legal order,' or 'legal proposition' (Rechtssatz), close attention must be paid to the distinction between the legal and the sociological points of view. Taking the former, we ask: What is intrinsically valid as law? That is to say: What significance or, in other words, what normative meaning ought to be attributed in correct logic to a verbal pattern having the form of a legal proposition. But if we take the latter point of view, we ask: What actually happens in a groups owing to the probability that persons engaged in social action (Gemeinschaftshandeln), especially those exerting a socially relevant amount of power, subjectively consider certain norms as valid and practically act according to them, in other words, orient their own conduct towards these norms? (Weber 1978,I :311). 15. This view, of course, reflects both the situation of continental positivistic jurisprudence of his time and his own vision how the social sciences should be operating. Meanwhile, the legal and social sciences, even if they continue to maintain (especially in Germany) a notable distance, have moved towards each other. Especially in the field of constitutional jurisprudence, legal scholars do no longer concern themselves solely with the interpretation of legal texts. They consider questions of political legitimacy, and integrate in their analysis the impact of political and social factors on the development of legal institution. This is shown by well-informed comparative accounts of the development of the East European constitutional judiciaries exist provided by legal scholars such as Schwartz (Schwartz 2000) and Brunner (Brunner 1993). However, Weber's idealtypical description still conveys the essential difference between legal and social scientific12 approaches to law (including constitutional law): while legal scholars are mainly interested in normative issues, concerning interpretation

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Compare, in this context, the discussion by (Segal / Spaeth 1993:33ff), who differentiate between the “legal model” on one hand, and the “attitudinal model” on the other. This dichotomy has been criticized by Howard Gillman (Gillman 2001). What I propose here is not a dichotomy, but ideal types.

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His term is "sociological", but Weber's vision of sociology was a discipline which covered what is today separated into sociology, political science, and economics.

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(what does the law mean) and on legal policy (what laws should be made) social scientists' main concern is explanation: how is law produced, and: what effects does law have?. 16. The archetype of the legal approach to constitutional review is the work of constitutional review’s main architect in Europe, Hans Kelsen (see) Stone 1992:226-231). Kelsen's "pure theory of law" represents the epitome of legal positivism. Kelsen had witnessed the misuse of law for political ends and his intention was to free law from the instrumentalization by politics. He argued for a "legal science" that would eradicate all traces of social or political thinking from the legal sphere and allow only "legal arguments", i.e. arguments deduced logically from written rules, as valid. That Kelsen, in 1920, was also the architect of the Austrian Constitutional Court, which became the model for the continental form of judicial review, is ironic because constitutional courts in Europe would later become, explicitly or implicitly, radical proponents of natural law jurisprudence. For Kelsen, the constitution was the “Basic Norm” (Grundnorm), from which all other norms flowed, and to which all other norms had to comply. The logic of this system of thought is straightforward: the democratic sovereign power creates the Basic Norm, after which a specialized judicial institution for constitutional issues (the Constitutional Court), applies the Basic Norm in a purely logical, rational-legal way. Kelsen himself always resisted including basic rights into the constitution, fearing that because of their vagueness and political nature, they would taint the pristine logical edifice of his legal positivist model. Even if it is strongly debatable whether constitutions without basic rights would be able to be applied as non-political “Grundnormen”, as Kelsen imagined, he was certainly right to point out that Basic Rights would politicize constitutional law in an extreme way. 17. Legal Positivism was sociologically never credible.13 It claims that “facts”, by no other way than legal-logical reasoning, can unambiguously be subsumed under legal rules (either written norms or judicial precedents) yielding, only one possible solution which can then be characterized as “apolitical”. Positivism is, just as "natural law", a normative theory of law, a form of "legal thinking" (Rechtsdenken), as Weber has called it. Reactions against it came, from the legal community itself, from sociologists of law, and later, from the developing discipline of political science. 18. Various attempts have been made to categorize the multitude of theoretical approaches in the socio-legal field in general, and in the social-scientific analysis of the constitutional judiciary, in particular. Stone-Sweet (2000), for example, differentiates "rationalist", by which he means rational choice models, from "culturalist" approaches – a distinction that corresponds with the difference between the famous homo economicus vs. homo sociologicus model (Brennan / Buchanan 1985). The "new institutionalist," anti-behavioralist movement in the social sciences (March / Olsen 1984), which has also been transferred to the socio-legal field (Smith 1988, Edelmann, Orren, Heimer et al. 1995, Clayton / May 2000) also makes the distinction between the more deductive, nomological theorizing of formal rational choiceinstitutionalist models and the more inductive-hermeneutical models of interpretativehistorical institutionalist accounts. Others (e.g. Kato 1996) argue that this dichotomy is too simple and further differentiate different approaches within the non-rational choice camp. For my present purposes, however, this simplified classification is sufficient. Totally missing in this picture are structural theories such as Marxism and System Theory which reject the

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Actually, Kelsen never claimed this. His account is normative and much more sophisticated than can be discussed here. See his “Pure Theory of Law” (Kelsen 1967). What is important to note, however, is the enormous influence his thinking had in Central Europe, especially Austria, but also in the countries studied here.

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approach of methodological individualism. Since – as far as I know - there is no literature on the topic that use these theories, I also will not discuss these approaches here.14 19. For my purposes, I distinguish four camps: the behavioralist-empirists, the formalistrationalists, triadic-dispute resolution theory, and the historical institutionalist approach. It has to be emphasized from the outset that in presenting the different approaches, my aim is not to "prove" or "disprove" them, which is a futile endeavor anyways, given, as Suchman (1997:495) argues, the choice between different theoretical models which stem from higherlevel meta-theoretical paradigms may be influenced by "questions of taste and perspective, as a much as of fact and evidence." Also, I will take up any theoretical, methodological and conceptual tools of these different approaches that will seem useful. What is important, I argue, is the knowledge that the reach of each theoretical approach is limited, and that only a broad, inter-paradigmatic perspective can promise to further our knowledge on the subject at hand.15 Behavioralist-empiricists 20. The hallmark of the behavioral approach is not so much the theories it produces, but by the method it employs. 20.1. The behavioral approach in has been characterized for Political Science as the view that 1. Political Science can ultimately become a science capable of prediction and explanation [...] 2. Political science should concern itself primarily, if not exclusively, with phenomena which can actually be observed [...] 3. Data should be quantified and 'findings' based on quantifiable data [...] 4. Research should be theory oriented and theory directed (Somit / Tanenhaus 1997:177178). Applied to constitutional courts, this approach postulates that only the collection of "hard" data such as the number of cases reaching the court and the number of cases decided by the court, and the quantitative operationalization of "soft data", such as the votes of judges, the nature of rights in the constitution and so on, will be an adequate method to arrive at truly intersubjective, "testable” hypotheses, which can be then used to construct adequate theories. 20.2. On the topic of the American Supreme Court, leading representatives of this approach are the "Attitudinalists" Jeffrey A. Segal and Harold J. Spaeth. They argue that the decisions by the Supreme Court are more influenced by the justices' personal ideologies and values than by constitutional law or precedent (Spaeth / Segal 1999, Segal / Spaeth 1993). On Courts outside the United States, C. Neal Tate has employed the behavioural approach on the Philippine Supreme Court (Tate / Haynie 1993). But scholars have also begun to use the behavioral approach to study constitutional courts and judicial review in post-Communist countries, as recent papers and articles show (Randazzo / Herron 2000, Randazzo / Herron 2000, Ishiyama Smithey and Ishiyama, 2000, 2001). 14

I doubt that Marxism has very much to contribute here other than the question „who is served by constitutional justice“ (which remains, however, a good question). System theory, as for example developed by Luhman, offers many interesting research question which have remained unexplored so far.

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This view is influenced by Hanson 1998, who makes a similar argument discussing approaches to postCommunist political economy.

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20.3. In my view, there are two sets of problems with this approach, one "technical", and the other substantive. Stone Sweet (2000:48) has stressed that the density of data that American "Attitudinalists" can work with in case of the U.S. Supreme Court cannot be found in the case of West European Courts. This is, of course, even more true for the case of Eastern Europe, even though the papers discussed here show that scholars still try to work with the data they can gather. But more important is the general problem that arises from postulating hypotheses from statistical correlations between quantified "reality": this method is for the most part unable to deal with context and process. Two examples relay directly to my research questions: 20.4. In their paper on "Designing Courts in Post-Communist Politics" (Ishiyama Smithey / Ishiyama 2000)16, Ishiyama Smithey and Ishiyama are interested in the "design of judicial institutions in post-Communist politics." They want to account for the strength of courts according to their formal design in the constitutions. The approach with which they seek to answer this question is classical "behavioral" in that they specify the dependent variable, judicial power, on the one hand, and various independent variables and then code these variables according to data from 20 post-communist countries to establish statistical correlations. Their method to measure judicial power or, as will be the term used here, judicial authority by the degree of judicial independence contained in the formal rules of the constitutions. As social scientists, they know that formal legal rules do not necessarily reflect what is actually going on in reality. They nevertheless assert, along with a growing consensus within the social sciences that formal rules do matter for political outcomes. 20.5. Furthermore, they claim that "[s]uch measures, although not designed to capture completely the actual degree of judicial independence in practice, do measure the degree to which constitution makers intended to create the potential for a powerful and independent judiciary" (167). Their criteria of measuring judicial authority as displayed in the constitutions (Can decisions be overturned? What are the extent of the Judicial Review powers? How long is the length of the judges' terms? Who sets the rules which determine the proceedings of court cases? How many actors are involved in the process of nomination and confirmation of judges? How difficult is it to remove judges from office?) are very useful, as are, as general ideas, the independent factors hypothesized to influence judicial authority (Political culture, economic conditions, multiethnic fragmentation, previous judicial review, number of actors involved in the constitution-making process). 20.6. However, since I am discussing questions of method here, the more problematic feature of their discussion is the operationalization of these variables and correlation of the retrieved "data". I cannot go into a detailed discussion of the different independent variables here; but what strikes me as highly problematic in general is the dynamic inherent in such broad and rather vague concepts as "political culture" or "multiethnic fragmentation". These concepts resist easy operationalization and quantification, and already contain all sorts of presuppositions which are not made explicit by the researcher, such as that a national "political culture" on the aggregate level is a meaningful category at all or that ethnic fragmentation means the same thing in each country. 16

In a recent paper, Ishiyama Smithey and Ishiyama (Ishiyama Smithey / Ishiyama 2002) have used a similar methodology to explain “judicial activism”. I have not been able to integrate this article into my paper but will try to do so in a later version. They find that “the number of effective political parties (as a measure of party system fragmentation) and the degree of popular trust in the court (relative to parliament) affect the degree of judicial activism” in the countries they studied. While this hints to important factors (the role of the parliamentary opposition and popular support of the judiciary), one does not actually need statistical methods to find this relationship significant, and certainly these are not the only important factors to be considered, as I argue later in this paper.

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20.7. A further point needs to be made: Smithey and Ishiyama presume that constitutionmakers made a conscious decision in choosing one institutional arrangement over another. They are interested in finding out the motives behind the choice by correlating possible factors for these motives with the institutional outcome. But what this discussion does not take into account is that constitution-makers might have been oblivious about what they were doing in the case of constitutional review procedures. These choice of rules might have been a choice “by chance and prestige” (Ajani 1995), that is, motivated by taking over models from abroad which were at hand by coincidence or which were chosen because they were successful – or imagined to be successful – in other countries. To be sure, Procházka (Procházka 2002:52) points out correctly that we should rely to strongly on the “they had no idea what they were doing”-explanation. It is as unrealistic to presume that constitutionmakers were completely oblivious to the consequences of institutional creation as it is to model them as fully informed, far-sighted persuers of their own agenda (as some versions of the rational choice model suggest, which I will discuss later). The answer, as usual, lies somewhere in the middle. 20.8. In contrast to the paper by Smithey and Ishiyama, who concentrate on questions of institutional creation, the papers by Herron and Randazzo focus on "judicial behavior", which belongs to the category of institutional development, if we follow the maximalist definition of "institution" outline above (since the formal rules of judicial review can be constant while judicial behavior changes). 20.9. They are interested in "the development of judicial activism in post-communist states" and use "court data from the post-Soviet region" to "submit theories of judicial behavior to tests in new cultural and institutional environments" (Herron & Randazzo 2000:1). While Ishiyma and Smithey were interested in "judicial independence", their interest is in "judicial activism", which they define, quite problematically, as the situation "when the courts do not confine themselves to the adjucation of legal conflicts, but venture to make social policies" (Ibid., 2)17 Their dependent variable is "whether the Courts of Estonia, Lithuania, and Russia exhibit patterns of judicial activism. Concerning the independent variables, authors make two different inquiries: in Herron & Randazzo, 2000, they claim is that judicial activism is positively related with the level of democratization. 18 In Randazzo & Herron, 2000, they correlate their judicial activism coefficient scale with the (independent) variables judicial structure, economic conditions, contextual factors (mainly political), litigant characteristics, and issue characteristics. 20.10. Again, as in the case of Smithey and Ishiyama, the main problem, as I see it, are the concepts understood as "variables", which, in a statistical analysis, necessarily become static. There are all kinds of developments – little "stories"—contained in each of these concepts, which make them interesting as part of an explanation. On the aggregate level that behavioralists authors reviewed here put their variables to the test, however, the causal significance of these variables becomes very diffuse: each causal variable is treated as an equal factor, despite the profound qualitative difference between the empirical phenomena "observed". Furthermore, in accordance with the central tenets of the behavioral approach,

17

The definition is problematic because they have not defined beforehand, what exactly differentiates "legal conflicts" from "social policies". After all, in adjucating the constitutionality of a bill reducing welfare benefits, for example, a constitutional court is both solving a legal conflict and making a decision on social policies.

18

The quantification of "Democracy" according to the Freedom House rankings and national constitutions alone could be criticized as very superficial.

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they provide almost no "background" theory.19 If one agrees with a view expounded by Jon Elster that the social scientific analyses should be concerned with specifying the "mechanisms" that produce certain outcomes (Elster 1998), a purely behavioral account is quite unsatisfying. 21. To be sure, if their results would lead to convincing and important hypotheses, much of the critique on the method stated here or elsewhere20 would loose some of its legitimacy. But Ishiyama and Smithey have to confess that apart from the "negative relationship between the number of parties and judicial power," there is a "lack of any other significant relationship" in their data (179). Herron and Randazzo find a few more statistically significant relationships, such as the insight that the "statutory promises of judicial independence were not sufficient to explain the actual behavior of the judiciary" or that "courts become more judicially active in economically poorer countries" (Randazzo & Herron:25). The justification for these findings, apart from their extraction from the data, is neither grounded in a theoretical model or confirmed by more concrete empirical data from the countries studied. What the claim that judicial activism is positively related with the level of democratization tell us about the difference between Hungary and Poland? Can the claim that courts become more judicially active in economically poorer countries be upheld once we include cases like Ukraine, Belarus or Russia? And what would be a possible “causal mechanism” that could explain such a relationship? Behavioralist methodology leaves us very much in the dark here. It might be unfair too criticize an emerging field research based on its initial results. However, as it seems to me, the behavioral approach is in desperate need of being complemented by other approaches which are able to put their results into context. In particular, little or no attention in the behavioral tradition is given to the actors involved, since it is difficult to imagine how the political actors and their behavior could be "quantified". Formal-Rationalist and game theoretical approaches 22. The next approach, in contrast, focuses almost all its attention to actors. I refer to it as the formalist-rationalist literature, which I do because of its reliance on formal or "positive" theory and/or rational choice models in the study of constitutional law.21 22.1. One could differentiate between three applications of the rational choice model to the study of law22: (1) the "law and economics" and "constitutional (political) economics" movement, which is mainly a normative discipline, claiming to offer "efficiency"-based solutions for legal and constitutional problems (Brennan / Buchanan 1985, Posner 1972); (2) the positive political theory branch, which tries to construct formal models of political-legal games which can predict outcomes (Ferejohn / Weingast 1992, Weingast 19

Except a brief mentioning of the "New Institutionalism", which seems to become an obligatory article of faith in recent literature.

20

For a similar critique of the behavioral method, see (Gillman 1994) critical discussion of C. Neal Tate's work which, however, I find too sweeping. The behavioral methodology can be, and has been, used fruitfully in areas where interpretational techniques are inadequate (for example, when large amounts of data have to be processed).

21

1.1. I do not intend to replicate the large and for the most part not very useful controversy for and against the rational choice paradigm (e.g. Green / Shapiro 1994). As I have mentioned earlier, as a theoretical paradigm, the approach itself cannot be proven "true" or "untrue". Instead, the question should be in which questions the approach is more, and in which ones it is less helpful.

22

I am relying here in part on (Knight, 2001 and Voigt 1997).

10


1997); and (3) strategic models of judicial decision-making, which rest "basic proposition that judges often act strategically in the pursuit of various personal, policy, institutional and jurisprudential goals" (Epstein / Knight 1998). For my purposes, only the second and third variant of the rational choice model are of interest. 22.2. The theoretical basis of the rational choice institutionalist model can be summarized as follows On the strategic account (1) social actors make choices in order to achieve certain goals, (2) social actors act strategically in the sense that their choices depend on their expectations about the choices of other actors, and (3) these choices are structured by the institutional setting in which they are made (Knight 2001). On this basis and with the help of game-theoretical theorems like the famous "prisoner's dilemma", sophisticated models can be build that employ more or less mathematical reasoning to predict the outcome of social, political, and legal "coordination games.". 22.3. Few rational choice analyses on the creation of constitutional courts or judicial review in Eastern Europe have been published yet (see, for example, Salzberger / Voigt 2002)23. This is despite the fact that Eastern Europe contains a host of relatively comparable cases of institutional design in which the natural question arises why purely self-interested politicians who are planning to be part of a legislature or executive would be interested in creating an institution which has the authority to strike down laws or acts that they would be making in the future. Maybe the lack of literature stems from what Stefan Voigt has described as the difficulty of rational choice models to convincingly explain constitution-making processes (Voigt 1997). 22.4. One answer could be along the lines of David Bartlett's remarks on the creation of Hungarian Constitutional Court. He remarks that the decision to endow the Court with unusually broad authority to void acts of Parliament ([which]) was taken before the founding elections in 1990, ([illustrates]) the strong incentives of political agents to establish mutual institutional checks prior to the first round of democratic contestation. (Bartlett 1997) Pedro Magalhaes has made a similar argument in relation not to the higher judiciary in Bulgaria, Hungary, and Poland by focusing on the "bargaining processes between political actors interested in maximizing their power under conditions of electoral uncertainty". He argues that ([n])ew judicial institutions in emergent democracies are shaped primarily by the strategies of dominant political actors who attempt to maximize the congruence of the judiciary with their interests and its responsiveness to their priorities (Magalhaes,1999:43). 22.5. These arguments seem to be reasonable assumptions to make, there are, however, two problems with such generalized theses.

23

For a more general account, see Shipan 2000.

11


22.5.1. First of all, it is not clear how the specific institutional set-up of the different forms of judicial review in the countries under study could be explained – why, for example, did the Hungarian Roundtable, and then the legislature, agree on the institution of "actio popularis", the right of anybody, including foreigners, to challenge the constitutionality of a law without any requirements of standing, while no other country in the region has provided such broad access to the courts. Why would a country like Poland, usually considered as one of the most democratized countries at the time of constitutional revisions, choose to install a parliamentary veto for constitutional court decisions (and abandon this practice in 1997), while a country like Slovakia, with all the nationalist ramblings and authoritarian tendencies of the prime minister, would not reserve this right to the legislature? 22.5.2. To be sure, if one moves closer to the individual case and immerses oneself in the circumstances of institutional creation, it is possible that a “rationalist” explanation can be found. For example, along the lines of Bartlett, Schiemann (2001:358) argues that the Hungarian constitutional court and its powerful jurisdiction “is the outcome of a struggle for political power between the communist regime and opposition parties during Hungary's negotiated transion to democracy from 1988 to 1989”. In his analysis of the minutes of the roundtable negotiations, he shows that the opposition initially had no interest in the Court, perceiving it as an institution which should protect the nomenclatura. Only at the end, when the opposition realized that it also could be protected by this institution. However, to understand the interests of the constitution-makers, it is not enough to look at their strategies of survival and political aggrandizement. The Hungarian constitutional court, as it emerged at the end, is the product of a longer process of “legalization” of the communist regime, which was overtaken by the events of the round-table discussion.24 22.6. Another factor that could be part of a rationalist explanation is the influence of foreign governments or organizations on the constitution-making process. Intent on securing financial assistance and a legitimacy boost from outside, the constitution-makers could have taken over models which they thought desired by western donors. Indeed, it is increasingly pointed out in the literature that the influence of Western actors, government and international governmental and non-governmental organizations alike, has been enormous both in respect to constitutionbuilding and later, in the development of the constitutional judiciary. 22.6.1. Martin Shapiro (Shapiro 1999:218), who is not a rational choice theorist, has argued that judicial review is being adopted all over the world partly because "they cannot help it", meaning judicial review, for whatever reason, is an integral part of today's standard definition of constitutionalism (cf. also Ishiyama Smithey / Ishiyama 2000:283-4). At first sight, it seems a good assumption to make that Western governments wanted to see "normal" rule of law standards to be implemented in Eastern Europe, and that the inclusion of the constitutional judiciary was a taken-for-granted part of these standards. This view is also implied by recent theories in international relations ("International Socialization Theory"), which argue that it is rational for elites to take over normative commitments of the regional environment in exchange for material benefits (Risse 1999, Schimmelfennig 2000).

24

I have looked at this processes in more detail in my M.A. thesis („Sozialgeschichtliche Bedingungsfaktoren des post-sozialistischen Rechtsstaats in Ungarn und der Slowakei am Beispiel der Verfassungsgerichtsbarkeit. Eine historisch-vergleichende Studie zur Rechtstransformation in osteuropäischen Gesellschaften“, Magisterarbeit, Freie Universität Berlin, 1999). For an autobiographic account of the events by the last socialist Justice Minister, Kalman Kulcsar (also a known Sociologist of Law), see his “Systemwechsel in Ungarn. 1988-1990”, Frankfurt am Main: Vittorio Klostermann, 1997.

12


22.6.2. But in the same way as analyses of powerplays on the national level, the inter- and transnational strategies of local actors can only explain a part of the story. It is important to know, for example, how much local actors actually care about the norms and values that would be in their rational interest to take over. It is a trivial thing to say that people do not change overnight, and the experiences they have made during their lives has a huge influence on what their priorities are. Matters of self-confidence and identity (“Who are we? Who do we want to become?”) are at stake. Or they are not: Certainly, decades of oppression, legal nihilism, cynicism, apathy, corruption, and everyday struggle for survival have turned scores of people in the post-Communist environment into rational choice’s dream-come-true pursuers of egotistic instincts. But not all of them. This is why it is so important to see how different these countries are in the distribution of instrumental-rationalists and valuerationalist actors, to take up Weber’s ideal types of social action here. 25 In Hungary, for example, there was a elite consensus on the question of belonging to Europe – even among the former nomenclatura --, while this consensus was not present in Slovakia. The further you move east, the less likely you are going to find this consensus.26 22.7. Rational Choice theorists have been more interested in explaining how constitutional courts developed in the post-Communist period, thus addressing question of institutional development. 22.7.1. A seminal article is Epstein, Knight and Shvestsova's "Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government" (Epstein et al, 2001). They adapt the model developed in Epstein and Knight's book "The choices justices make" (Epstein & Knight, 1998), which is based on a game-theoretical model of judges acting strategically in face of the possible reactions of other institutional players. Epstein and Knight rejected the hypotheses of the attitudinalists that judges simply try to implement their policy goals (the "unconstrained court" hypothesis). Instead of being single-mindedly driven by their personal ideological preferences, constitutional court judges do take into account that they are, in fact, not the "last arbiters" of the meaning of the constitution and thus can decide freely whether certain laws or executive acts will be implemented or not. This position, which is also held by many in the legal community, might be the idealtypical concept of how a constitutional judiciary works, but does not reflect what goes on in practice. Rather, the other players in the political game, such as government and the legislature, have the ability to retaliate against the judiciary, making the court a "constrained" actor. To preserve its position within the power-structure and its institutional legitimacy, the court needs to calculate how the other actors will react to its decision. This means that against what "attitudinalists" believe, judges will compromise on their most favorite policy goals for strategic reasons, both towards their colleagues inside the court and possible audiences outside the court, including the public. 22.7.2. On the basis of these theoretical assumptions, Epstein et al. sketch a model that they believe "captures the role of courts in democratic societies, one that we can invoke to generate testable propositions" (127), which takes the form of a strategic interaction between a constitutional court and three elected actors, a President, and Upper Chamber, and a Lower Chamber. "All actors prefer policy that is as close to their ideal points, but they are not unfettered in their ability to achieve that goal" (128) . Their case study is the Russian Federal Constitutional Court. By comparing the institutional performance of the first court, which was 25

For an excellent analysis of this distribution in Slovakia, see Cohen 1999. According to her, the Slovak political landscape has been characterized by a constant struggle between self-serving opportunists of the kind of Meciar, and true ideological forces on the left and on the right.

26

On the impact of “space” in terms of geopolitics and identity, see Kopstein / Reilly 2000.

13


disbanded by president Yelsin in 1993, and the second court, which has been reestablished in 1994, they confirm the prediction of their model that courts who want to preserve their legitimacy, "they will not accept petitions for review that involve policy dimensions for which an intersection of tolerance ranges does not exist; so doing would lead elected actors to challenge them or their decisions" (131-132). The first court, by ignoring these real existing constraints and acting in an overtly political way, finally overstepped the tolerance levels of the president and executive, and saw itself dissolved. The second, in contrast, was much more prudent in its decision, and therefore preserved its position. 22.8. Epstein and his coauthors' analysis points to an important insight: Being without "neither purse nor sword" (Hamilton 1937), constitutional courts are indeed "constrained actors" 27 who, in their decisions, are neither blind followers of objectively existing constitutional principles, nor simply implement their personal preferences, as the heirs of the realist school of legal sociology predict. What is missing from this account, however, is an explanation where the "tolerance intervals" of different political actors come from in the first place. A strict rational choice explanation would have to assume that all political actors' "tolerance intervals" are determined by their rational self-interest, while Epstein and Knight are willing to admit all kinds of goals, such as, in the case of judges, "a concern for institutional legitimacy" (Knight, 2001:2). 22.9. Georg Vanberg has offered a rational choice interpretation on how "high courts establish and maintain themselves as powerful institutions": First, high courts can derive authority from broad public support, which holds out the threat of electoral punishment for the executive and legislature if they interfere with judicial independence. Second, high courts can derive authority from the strategic interactions of various political institutions, provided the interests and relative bargaining strengths of these institutions directly lead them to respect the court or move other actors to protect the court against challenges." (Vanberg 2000:334) Vanberg supports these hypotheses empirically by an historical inquiry into the early years of the German Federal Constitutional Court. He also points to the fact that in order for publics to support the court in enforcement of its decisions, the fact whether the legislature or executive is evading the constitutional court rulings or not must be transparent to the public.28 To the extent that the electoral connection is crucial in lending force to judicial rulings, the ease with which citizens can monitor legislative reactions to decisions takes on special significance. For any given level of public support or degree of interest in a policy by legislative majorities, the court is able to garner respect for its decision only if the environment is sufficient transparent (Vanberg 2001). 22.10. One major consequence of a rational choice approach to law is the general neglect of the law as a semi-autonomously developing system of formal and informal norms. 22.10.1. Alec Stone Sweet (Stone Sweet 1998), in his discussion of Vanberg's modeling efforts, has pointed to the limitations of game-theoretic modeling of the "constitutional politics game". According to him, "game-theoretic approaches, at least at their present stage of development, are incapable of dealing with the single most important feature of constitutional politics, namely, the continuous adaptation of the rules of the game by 27

The terminology originally comes from Rosenberg 1991.

28

Why one has to develop an intricate game-theoretical model to support this thesis, however, is less clear to me.

14


constitutional adjucation". Game theory, because of the necessity to sustain a limited complexity, has to assume fixed rules and unchanging preferences of the political actors. However, if constitutional rules are continuously changing by the very nature of constitutional adjucation, the rules are not fixed, and preferences might be shifting during the constitutional politics game. As Jack Knight, a leading proponent of the strategic model, himself states, rational choice theory "cannot explain preference-formation, it cannot do a complete and adequate job of explaining belief formation and it cannot explain behavior that is not goaloriented" (2001:16). This points to the importance of historical-interpretative inquiries into how the different players in the "constitutional politics games", including constitutional court judges, politicians, and the public came to believe what they believed, and how this affected their "preference formation".29 22.10.2. Also, as Stone Sweet points out, not every piece of legislation is alike. The political players might attach more importance to some pieces of legislation than to others. Some laws might have symbolic nature rather than providing material or institutional benefits to politicians or their clientele (Sunstein 1996). There are numerous examples of symbolic legislation, with minimal actual effect, which are nonetheless fiercely fought over.30 Some issues regularly surface, like the U.S. –american constitutional debate on abortion, others do not interest anyone after a few months. In each case, “tolerance intervals” as described by Epstein et al. exist, but: they are not stable and cannot be generalized. Particularly not in societies in transformation which have not yet agreed on fundamental values and have not yet developed stable ideological boundaries. Dispute-resolution in Triads 23. The third approach to be surveyed here is the extension, of the Triadic Dispute-Resolution model described by Martin Shapiro, to constitutional courts. Alec Stone Sweet has first offered a fully elaborated theoretical model which postulates the circular nature of the judicialization of politics and the politicization of the judiciary. Simplified31, his theoretical model is as follows (see Stone Sweet, 2000, 12-30 and 194-204). 23.1. The constitution as a normative structure does only provide clear-cut answers for a relatively small number of questions about the constitutionality of a laws or executive behavior. Most articles, and specifically those containing basic rights, have to be interpreted. Since outside of legal fictions, there is no final and „objective“ way to determine the „normative meaning ought to be attributed in correct logic to a verbal pattern having the form of a legal proposition” (Weber 1978,I:311), groups in and outside of parliament with diverse ideological and material interests cannot but interpret the meaning of constitutional provisions differently. 23.2. In political systems with constitutional review, the task of authoritatively determining the specific normative content of the constitution has been delegated to a judicial body purporting to decide not on the basis of political considerations (that is, according to ideological or material interests), but only on the basis of the normative structure which has been accepted by all the political players as binding – the constitution. The justices have to 29

Gillman has been an ardent proponent of this line of argument. See his exchange with Lee Epstein and Jack Knight in Law and Courts, Winter 1996 and Spring 1997.

30

For Hungary, see for example, Scheppele 2000:

31

I do not discuss his concept of “law” and of “constitution”, which differs importantly from the usage of both lawyers and other social scientists. In short, for him, law is a subset of social norms, and the constitution contains not only the written norms, but also behavior.

15


decide important and divisive political questions and, at the same time, need to preserve their legitimacy and independence. If successfully, this is achieved by two main tactics: First, by justifying their decisions normatively, i.e., in reference to the law. The “legal model” of constitutional review has to postulate that the decisions are in fact only based on the logic of the law – otherwise the court could not be considered a neutral body and its legitimacy to decide such questions would break down. Second, they avoid alienating politically powerful parties to the dispute by attributing a full defeat to them. Instead, they achieve their aims in smaller steps. 23.3. Through their decisions, the justices have altered the normative structure of the political system. They do not pronounce what is already objectively existing as constitutional law, but they actually create norms where there have been none before the question was brought up in the court. 23.4. With this step, Stone Sweet is again at the beginning of the circle. The players in the constitutional politics game are in a different normative structure and have „learned“ something about how this game works. Thus, constitutional justices exert "pedagogical authority over future legislative processes", providing a "feedback-effect" into the political system. A result of this circular process is a growing politicization of the constitutional judiciary and a corresponding judicialization of law making and executive behavior (194/195). The difference between law and politics becomes increasingly blurred, since “constitutional judges will increasingly behave as sophisticated legislators, and ([…]) legislators will act as constitutional judges do” (3). An ever growing web of constitutional imperatives increasingly narrows down the leeway legislators have. And legislators, by initiating abstract review procedures selfishly (“rationally”) to either frustrate legislative projects of the political opponent or to get rid of difficult or unpopular decisions (on the latter, see (Graber 1993), promote the judicialization of politics, constrain themselves even further, and hand over power to the judiciary. 24. Stone Sweet’s model provides many answers to the questions raised at the beginning of this paper, especially, why “so many people in so many parts of the world entrust so much of their governance to judges”. He does acknowledge that, once the institution of judicial review is introduced, the instrumental rationality assumed by rational choice theorist has a huge role to play in explaining the increasing judicialization of politics. At the same time, he does not restrict his assumption of rationality to purely instrumental factors. The law as a normative structure plays a role of itself. Judges and legislators respect constitutional jurisprudence not only because this serves their own power, wealth or prestige, but also because they believe that following norms is an ethical and professional postulate. 25. There is a certain functionalist weakness in the argument, which it shares with the triadic model on which it is based. The court is portrayed as successful because it serves the role of a dispute resolver. However, the function an institution has acquired after a long development in history is not really adequate to explain why it was created in the first place.32 26. Another point that is not paid enough attention to in this model, which reflects a process in a closed political system, is the role of external influences, even though, as we have noted, they play a huge role in the establishment and evolution of judicial systems. The question why a certain doctrine is used or not used in order to expand judicial policy-making, cannot, at least in the context of Eastern Europe, be discussed if potential models for this jurisprudence 32

This was a eminent problem of the original Parsonian structural-functionalism, and it would have to be discussed whether Luhmann’s evolutionary system theory has been able to overcome this problem (which I won’t do here).

16


in the Western context are not taken into account. I will argue, part of the legitimacy constitutional jurisprudence has taken on in the post-communist states, is based on its origins in liberal-democratic (and economically successful) Western constitutionalist societies. 27. The central problem of the model, however, is its implied determinism. On first sight, the circle of judicialization seems to spiral further and further, with a possible complete loss of sovereignty by the legislature or executive. This of course, is not what Stone Sweet is implying. First of all, the judicial usurpation of political sovereignty is limited by the text of the constitution. Even though constitutional language is vague and can be interpreted in various ways, there is a limit to what the other branches will tolerate. Stone Sweet himself explains that the circle can “under certain conditions” (195) break down at any point. However, he does not discuss this point in detail. That means, the model leaves us without clue exactly at the moment where the explanation becomes interesting. One potential answer is, again, the violation of politicians’ “tolerance intervals” suggested by Epstein et al. However, as I have argued above, without a historically informed inquiry on how these “intervals” have been formed, we cannot say much about them. Instead, the question whether an expansion of judicial authority will be tolerated or rejected by the legislature has to be explored in the context of the specific historical situation in which the court decides a case and the legislature reacts to the decision. In sum, the triadic-dispute-resolution model takes us very far in the understanding of judicialization processes in many, including post-communist states. But we have to turn to history and leave the field of theoretic modeling. This is what the next section is trying to do.

III. A framework for the study of constitutional courts in post-Communist states 28. In the following, I first present the underlying theoretical and methodological approach guiding my paper and then set out a heuristic framework of interrelated levels: on each level, I will identify the factors which I argue explain some of the dynamics of institutional creation, development, and impact. My enumeration of factors is necessarily very superficial and neglects many important theoretical insights into the mechanisms of constitutional review. However, my intention here is not to write a textbook, but to sketch the complexity of factors that I argue impact constitutional development in post-Communist countries. 29. What I propose here could be described as a theoretical exercise in “historical” or “sociological” institutionalism. This theoretical movement is a reaction to both behavioralism and rational choice institutionalism. Its fundamental tenets are that institutions not only structure political choices, but also give meaning to them. At the same time, their meaning and content is not fixed, as formal models have to assume, but is constantly challenged and transformed. Finally, it argues that without paying attention to the historical origins of institutions, it is impossible to understand how they function at present. This implies, certainly, a rejection of behavioralist methodology, and, for the most part, of game-theoretic modeling. This general approach has been applied to legal institutions (see, for example, (Edelmann, 1995; Smith, 1988). As Robert Cover has vividly put it, The rules and principles of justice, the formal institutions of law, and the conventions of a social order are, indeed, important to that world; they are, however, but a small part of the normative universe that ought to claim our attention. No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each Decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live (Cover 1992:96). 17


30. The work on constitutional judiciaries that has most specifically identified itself with this approach by Howard Gillman and Cornell Clayton (Thelen / Steinmo 1992, Hall / Taylor 1998, Clayton / Gillman 1999, Gillman / Clayton 1999). In a debate with Epstein and Knight, the proponent of the rational actor model in the analysis of the constitutional court, Gillman claims, for example, that Institutions do not only constrain choices of strategically acting players, they are constructed around a 'mission': Interpretivists suggest that what makes something a recognizable 'institution' is a mission - an identifiable purpose or a shared normative goal that, at a particular historical moment in a particular context, becomes routinized within an identifiable corporate form. .. it is not a unique strategic terrain but rather a distinctive mission and a sense of how the maintenance of this inevitably-evolving mission interacts with other elements in a given (dynamic) social setting (Gillman 1997:7). 31. Once criticism that can be made against the label “historical institutionalism” is that it is very unspecific. Unlike the other approaches surveyed here, there is no straightforward theory behind this approach that could readily be identified (such as the strategic or the triadic model). Also, beyond the rejection of the rational choice model of human action and a belief in “interpretivist” methodology, there is little substantive unified theorizing, but many different research traditions (see for example, (Skocpol 1984)33 This is a serious shortcoming, and unlikely to be ever overcome. What needs to be kept in mind, however, is that the degree of “science” in the “social sciences” in not determined by the parsimoniousness of the model, but by the plausibility of the results. We can have many different vocabularies to describe similar phenomena, as long as we make clear what we mean by the terms we use and what this means for the explanation.34 32. What I am describing in the following is a “framework”. It is meant as a guideline justifying why I chose to look at the particular empirical aspects of the infinite universe of facts that could possibly be investigated. Epistemologically situated between the paradigmatic approaches outlined above and ideographic description, a framework has to be able to formulate medium-range hypotheses amenable to empirical investigation (Scharpf 1997:536). 33. In particular, I propose four different levels on which courts could be analyzed comparatively: 1) the courts themselves as actors and their opponents in the political system; 2) the institutional framework which determines the rules of the political game; 3) the social and cultural context in which the court operates, and 4) the influence of international and transnational factors. These levels have mainly heuristic value: There is no way to draw a clear line between them. Nevertheless, in comparative analysis, we need certain criteria to select data for the comparison, something which is only possible by way of artificially dividing up the empirical world. In each case, factors from these levels might interact differently to produce a specific outcome. Actors The first level is primarily concerned with the interplay of actors within the national political and legal system (to differentiate it from international factors). 33

I have argued elsewhere that an early version of “historical institutionalism” was offered by Max Weber’s comparative historical sociology (Boulanger 2000a).

34

This is why an anthropological account of a court’s functioning can be as “scientific” as a statistical analysis or an abstract model.

18


34. Judiciary 34.1. The Constitutional Court. The main actors, in our analysis, are the courts. Courts have basically two options: a) they can be "activist," that is, use the ambiguities inevitably contained in legal texts, especially in constitutions, to invalidate legislation or create new legal doctrine; b) they can resort to "judicial restraint," giving preference to the strict literal interpretation of the law. Of course, "judicial restraint" can be a smokescreen for "negative activism," i.e., refraining from invalidating legislative or executive acts which can be deemed unconstitutional even on a strictly literal interpretation of the law (Tate 1995)). Why a court takes a certain position cannot be answered in the abstract. Many factors determine its attitude: On one hand, there are the justices themselves: Personal preferences and professional ethos play a role as well as power-play and strategic acting inside the court. On the other hand, the "constitutional dialogues" (Fisher 1988) between the court, the legislature, the executive, and, by way of the media, the population, do also shape the courts stance. An activist court does not always seem like one. One strategic option, for example, it to resort to "legal incrementalism" - a technique by which judges can, as Shapiro explains, award immediate victory or non-defeat to their most dangerous potential opponents while moving the legal doctrine toward an eventual outcome that would have engendered highly destructive opposition if incorporated in actual results the day it was announced (Shapiro 1999,212-13). 34.2. Other (highest) courts. The constitutional court is not the only court that should be looked at. All constitutional courts have been inserted in existing hierarchical judicial systems. Especially the Supreme / Highest Courts who had been at the top of the hierarchy might be jealously watching their jurisdiction. In most post-communist countries, the replacement of ordinary judges has been limited. That means that there might also be a clash between newly elected constitutional court judges which (in part) are staffed by former opposition politicians, and ordinary court judges which have been part of the former regime. Recently, Radoslav Prochazka (2000) has analyzed in depth the importance of this intraudicial “colloquy”. It becomes increasingly clear that the ordinary judiciary wields quite a large amount of power in some countries and successfully prevented that the constitutional courts were given certain powers, such as a true constitutional complaint.35 34.3. Within the judiciary, the court can find not only adversaries, but also supporters. For example, lower courts might try to change supreme ordinary courts’ rulings by submitting their cases to the Constitutional Court. 36 In post-Communist countries, circumstances are generally not favorable to this development. The ordinary judiciary has little training in constitutional law and, faced with a large and unmanageable caseload prefers to get rid of the cases in its docket rather than keeping it longer by a referral to the constitutional court. However, there is a growing number of such occurrences in Hungary and Poland37, and the pedagogic feed-back to the judicial system might trigger more and more such cases, if they are successful. 35. Parliament/ executive/political elite

35

See Procházka, 2002 for details in the case studies on Slovakia. In Poland and Hungary, you can find similar processes, with even more success at the institutional level.

36

Stone Sweet (2000) has shown this phenomena to be particularly characteristic for the case of Italy.

37

As I was in formed in interviews conducted in 2002 at the courts in Warsaw and Budapest. It was explained to me that some lower court judges liked the attention of the media that such cases generated.

19


35.1. How other political players react to constitutional court rulings can also be examined on this level. Theories about strategic action based on instrumental rationality can be applied here. As Shapiro notes, the general story of successful constitutional judicial review is one of other powerful political actors accepting some level of judicial policy-making as an inevitable cost of getting what they want to from courts, namely third-party conflict resolution of particular kinds of dispute (Shapiro, 1999:210). There are also many examples for situations in which parliament does not want to decide unpopular questions itself and leaves them to courts, supposedly to decide the question "according to The Law." (Graber 1993). By offering the political actors some sort of balanced arbitration of what would be otherwise political deadlock or unpopular policy-making, the courts can become indispensable parts of the political process and their power more or less undisputed by the other political actors. This is where Stone Sweet’s judicialization theory is most helpful. 35.2. And in the post-Communist context it is certainly warranted to look at oppositional parties who appeal to the constitutional court as actors which are motivated by self-interested rather than interested in the clarification of legal issues (a frequent complaint by constitutional justices from this area). 35.3. The reverse relationship, the question why parliamentarians (dis)obey the rulings of constitutional courts, can equally be investigated using insights from the model suggested by Epstein et al. But unless we know where the “tolerance intervals” they mention come from, and how they changed at a certain point of time and why, we do not really understand what was happening. It is likely that in each country, some key decisions occur which provide the “pedagogical feed-back” mentioned by Stone Sweet. These decisions, and the outcome of the struggle over the decisions, are likely to shape the expectations and behaviors of key actors for some time, producing a certain “lock-in” effect of the relationship between judiciary and the other branches of government. However, there is no reason why a certain established practice is not going to change. 35.4. Based on these theoretical assumptions, there are two contrary ways one could hypothesize about the relationship between the political elite and the judiciary. 35.4.1. On one hand, one could follow the proponents of the “constrained court” thesis (Rosenberg 1991), who suggest, following Martin Shapiro, that No regime is likely to allow significant political power to be wielded by an isolated judicial corps free of political restraints. To the extent that courts make law, judges will be incorporated into the governing coalition, the ruling elite, the responsible representatives of the people, or however else the political regime may be expressed (Shapiro 1981:34). These scholars assume that judges will express the views of the lawmaking majority for two reasons: because they come from a similar socio-cultural background as the those in the executive and legislative, and because they know their relative powerlessness vis-à-vis the other branches. This thesis can be expressed in the rational choice / game-theoretic model that I outlined earlier. 35.4.2. On the other hand, there are those who think of strong constitutional courts as “educators” of the other branches of power. They assume that the courts can command allegiance from the other branches of power because of their aloofness of the petty political 20


struggles. Being, under some circumstances, “more democratic than parliaments” (Scheppele 2001), constitutional courts can be able to attain a political capital that protects them from attacks from politicians. One way of formulating this “unconstrained” view of courts sociologically is the “charisma of law” thesis that I have developed elsewhere (Boulanger 2000a). 35.5. Unsurprisingly, my argument is here that both views have some validity. It is certainly true that constitutional courts are not “unconstrained” in a sense that they could do whatever they please without being effectively checked by the other branches of government. On the other hand, it is insufficient to assume, as Huntington does, that courts transition periods have no functional independence from the executive and that justice is “a function of political power” (Huntington 1991:228). In a Weberian perspective, it is important to look for other sources of legitimacy that the courts could draw on to maintain independence and assert their authority. 36. Social elite/intellectuals outside of the government. According to Elite theorists, following Weber’s suggestions, in any regime the broad population counts much less for the explanations of political outcomes than the well-organized political elite. Even in an electoral regime that offers participation through elections to the populace, the range of possible political developments is restricted by the availability of suitable candidates. Moreover, one of the critical factors in the consolidation of a new regime is the support or hostility of the bureaucratic staff in the state administration This argument has been made for the postCommunist region as well (Higley / Lengyel 2000, Higley, Pakulski und Wesolowski 1998). The elite is itself composed of numerous sub-groups. Next to the political elite in the executive and parliament, two elite groups are especially important for our inquiry: the lawyers and the journalists. 36.1. One decisive social group that still is underestimated theoretically is the one of academic and practicing lawyers. First of all, as Shapiro explains, the common wisdom "the constitution is what the judges say it is" has to be modified into "the constitution is what the judges say it is and what the commentators say the judges say it is" (Shapiro, 1999:214). For the great majority of none-lawyers, court decisions are mostly incomprehensible and therefore of "low visibility." Lawyers explain and evaluate the decisions for the rest of the political elite, sometimes also for the broad population. Second of all, as Shapiro points out, in many if not most countries, lawyers are disproportionably represented in the political elite in legislative and executive. Both the monopoly on the interpretation of legal decisions and the sheer numeric strength makes them a very powerful group that has to be considered when assessing the authority of courts. 36.2. A second important elite group are journalists and editors, those who control or influence "published opinion." Since the lawyers have no direct access to the public, journalists, even more than the lawyers themselves, determine the publicity that court decisions receive. Different players in the media support or criticize the court and are therefore a potential allies or opponents. Maybe Shapiro's qualification of the statement "the constitution is what the judges say it is" thus has to be further expanded: "the constitution is what the media says the commentators say the judges say it is." Since in the context of Postcommunist East Central Europe, there is little knowledge about the theory and practice of constitutional judiciaries, the central role of the media is even more pronounced. 37. Public. 37.1. Focusing on political and social elites does not mean to assume that the masses do not count. But as we know from social movement theory, it is much more difficult for large, 21


unorganized groups to mobilize for political action – and therefore could be characterized as an actor, while closed and numerically relatively small elite circles with access to the relevant information and to the instruments of state coercion have a enormous power advantage – a point Weber has repeatedly made. 37.2. Except in extremely controversial cases with "high visibility" - for example Brown vs. the Board of Education or Roe vs. Wade -, political actors will not be able to mobilize the great mass of citizens in order to threaten the court’s authority. The importance of “visibility” has been discussed, as we have seen, in the rational choice literature. But its theoretical operationalization has so far been quite weak, especially when it relies on attitudinal research on the aggregate level (Gibson 1996, Weingast 1997). We therefore have to distinguish diffuse mass support or disapproval of court actions versus organized social movements which could be legalistic or anti-legalistic, in Weberian terms, which could seek material instead of formal justice.38 Diffuse mass opinion about the legitimacy of court activism only counts if the elite feels the real or imagined threat that these mass attitudes will harm their position, i.e. that individual politicians or parties could lose an election because of their stance on the court. Organized social groups or movements, however, can present a real threat to judicial authority as well as boost its position. 38. Ishiyama Smithey/Ishiyama (2002) have correctly identified popular support for the courts to be an important variable in explaining judicial authority. But as the Slovak case shows, high level of popular support can be associated with disrespect for it by the legislature. There is no simple correlation between the two concepts. 39 The ideological conviction of the political elite, and their (short-sighted) political interests mediate here in an important way. 39. Rights organizations or functional equivalents. In a recent influential book on the “Rights Revolution” in the US, Canada, Britain and India, Charles R. Epp has pointed to the necessity of a "legal support structure" for successful constitutional litigation (Epp 1998). He refers an infrastructure of rights advocacy organizations providing the resources of money, time, psychological and legal support which determine citizens' capacity to mobilize the law. On first sight, it seems rather unlikely that such a legal support structure exists in postCommunist countries, at least in the initial years of the transformation. Charles Epp’s point might not be valid for Post-Communist countries, however. Ulrich K. Preuß (1995) has speculated that in the absence of “civil society” in Eastern Europe, “teleological constitutions” could provide some kind of “Ersatz” (surrogate). Taking this thought further, constitutional courts, through their activism, could try to initiate social and political changes that would usually be fought for by social groups. Other “functional surrogates” could be, for example, the ombudsmen, who have taken over roles that in functioning civil societies would be played by non-governmental institutions. Institutions/Norms/ “Law” 40. The second level of analysis is the formal-institutional setup of the political and legal system. As an analytical level, I understand 'institutions' in the narrow sense as "the formal rules of the political game" as laid down in constitutions and statutes, as interpreted either consensually or by authoritative decision by a court. This means that causation on the institutional level works both ways: on one hand, the authority of courts is defined by the institutional setup, on the other side, courts have the possibility to determine the institutional 38

A distinction Stephen Holmes fails to make in his widely-cited attack on court activism in Eastern Europe (Holmes 1993, Holmes / Sunstein 1995).

39

‘Popular support’, too, is a concept: it is a construction by the researcher and not a ‘fact’.

22


setup of the political system by their authority to give authoritative interpretations of the constitution. 40.1. Not only do courts increase their authority with the process that Stone Sweet had described. They are even able to increase their jurisdiction by interpretation of the rules defining their jurisdiction. 40.2. As Smithey and Ishiyama rightly pointed out, the authority of constitutional courts has something to do with their formal-legal layout in the constitution and other legal acts. It makes a big difference whether the court has the power of abstract review of legislation, as European courts usually do, or is confined to review concrete cases brought before it, as the American Supreme Court. Also the question of standing is very important - who can address the court, what conditions have to be fulfilled before the court will accept a case? (See here (Pasquino 2001) For example, can everybody go to court to file a complaint or only members of the legislature? Finally, how binding are the decisions of the court - do compel all other branches of the government to comply with the judgment, or can they be overturned by the legislature? That, for example, the Hungarian Court had the chance to review almost everything it wished was to a great extent due to the fact that through the possibility of actio popularis every law came to the court anyways. 40.3. On the other hand, the institutional structure could be structuring how resistance against the court is organized. For example, the Hungary’s Constitutional Court Act requires a two-third majority of the legislature to be changed, making it impossible to manipulate for any coalition government which did not possess this majority. The solution to “work around” this institutional blockade was to exchange activist judges with less activist judges (Scheppele 1999, Scheppele 2001)). 40.4. Less obvious, but equally important is the relationship between the general institutional structure of the political system and the role of the constitutional court. The relationship between Federalism and a strong court has received most attention in this respect (Shapiro, 1999:194-196). But also other factors come into play: whether the system is unicameral or bicameral; whether a strong president faces the parliament, or the opposition struggles with the majority led by a prime minister. Alec Stone Sweet has put this theoretically as the importance of the number of “veto points” in the legislative process. That is, the more veto points are provided by the constitution (for example, through the need of federalist bargaining or two chambers), the less need there is for the political opposition to go to the court. In Poland, which has a bicameral system and an Ombudsman for Constitutional Rights, there might have been less necessity for Constitutional Court intervention than in, for example, Hungary.40 Socio-cultural context 41. The concept of “culture” has proven notoriously difficult to operationalize for use in the social sciences, since it is difficult to agree on what should be counted as being part of “culture” rather than of “structure”, “informal institutions” etc. 41.1. To say “culture is important” in social explanation is often nothing more than a profession of faith than a theoretical statement. This is also true for the concept of legal culture (Friedman / Scheiber 1996, Nelken 1997). I therefore suggest to disaggregate these 40

Hungary, too has and ombudsman system which in practice however worked very different from the Polish case. In Poland, the ombudsmen and –women became active constitutional players, and forwarded many cases to the Constitutional Court, while this hardly happened in Hungary.

23


concepts into their constituent parts, which, for reasons of analytic clarity, have to be different from what I have called “actors” and “institutions”. Also, “culture” must be something different from temporal values recorded in public opinion surveys. 41.2. Rejecting the usual dichotomization between “idealist” and “materialist” accounts of the development and present state of legal phenomena, one could refer to the structural and cultural context of actors and institutions as the realm of – legal - social knowledge, discourses, ideologies, practices, and networks, embedded in certain socioeconomic conditions. 41.2.1. Social knowledge entails what people know about the law because they have heard it from someone, or experienced it themselves. For example, the normal legal practice of Socialism is part of the social knowledge of post-communist societies, in the particular form that it existed in the specific country. 41.2.2. Legal Discourses are the communications that are made about law. Of course actors are producing the discourses, but once they have been made, they develop their own lives, especially when written and/ or widely circulated (Nelken 1996). This certainly is true for the decisions of Constitutional Courts. By these publicized texts, which are not only aimed at the parties to the dispute, or to a professional audience of constitutional lawyers, but to the public, they create a “constitutional language” with its own rationality, which competes with other discourses in the public realm for recognition (Füzér 2001). But also every other statement that is made publicly about the Court or the constitutional law that is produced by the court takes part in the shaping legal-constitutional discourse. I propose to use the concept of ideology apart from that of discourse since it implies a “will to power” which is not inherent in every discourse. In the legal-constitutional realm, there can be many legal discourses but only one dominant one (“Die herrschende Meinung”).41 41.2.3. Legal practice is closely related to this, only it refers to the non-discursive aspect of “culture”. Weber treats this aspect under the rubric of “traditional” forms of acting (“ingrained habit”). It is what lawyers / judges / defendant / plaintiffs etc. “usually do”. Some of it can be described by participants, much of it people are usually not aware of until they come to a particular environment where things are “done differently”. 41.2.4. Social Networks are the informal connections between actors which make certain ways of acting more easy than others. Networks save effort, provide access, and transmit knowledge. Sometimes, networks are held together by a common ideology, a shared identity, and sometimes by mere instrumental utility, most of the time, by all of these factors. Networks, I argue, are one of the most important legacies of the communist era in Postcommunist societies, also in the legal sphere.42

41

I do not use “ideology” in the Marxist sense which implies deception and “false consciousness”. Rather, I think of it in the Weberian sense of “legal thought” (Rechtsdenken) – Some way of thinking and communicating about Law which excludes other ways of thinking and communicating and is perpetuated systematically – for example, in law schools.

42

Space forbids to go into detail here, but what should be kept in mind, for example, is that to understand Hungarian political developments, one needs to know that it is a small country and that, during the transitional time, everybody in the political elite, the president of the Constitutional Court included, knew everybody else, most have been graduated from the same law school, has played soccer together at one point, and has shared oppositional experience. This creates an amount of trust unlikely to be found in larger countries.

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International Factors 42. The fourth and final level of analysis looks at the transnational and international factors already mentioned. 42.1. Obviously, the transfer of legal texts comes to mind. Eastern Europe’s constitutions, for example, would not look the same without the assistance of western scholars and government agencies. But even where no external forces were at work, the East European constitution-makers have extensively relied on international treaties and declarations, for example Human Rights conventions. Not only texts, but also legal doctrine is borrowed transnationally. Courts have started to cite each other and take over legal principles (Slaughter 1997), thereby creating what Kim Scheppele has called “international constitutionalism” (Scheppele 1996) or what also could be called “international judicial colloquy”.43 42.2. But a very important factor is frequently overlooked: the experiences constitutiondrafters, legal experts, and constitutional court judges have made with particular kinds of constitutional culture long before they were in a position to exert their influence. I will come back to this point at the end of this paper. 43. We also have to look at political processes that lawyers usually pay less attention to - the dynamics of international relations. I argue here that whether elites respect the authority of courts depends also on how they think their conduct will affect their country's foreign policy, in particular, their chances to gain recognition and become part of prestigious and economically advantageous inter- and transnational units. In other words: if the local elites agree among each other that obedience to the constitutional court is part of being a "Rechtsstaat," and being a "Rechtsstaat" is the condition for becoming member of, for example, the European Union, then they are more likely to allow strong court activism. Negatively stated: if the local elite has not much interest in international integration, then there is likely to be less respect for the judiciary. 44. The importance of international actors also works in a different aspect. If courts can find allies in the international sphere (for example, the European Union, the Council of Europe or the European Court of Human Rights) for their mission and practice, it is much more difficult for political actors to defy them, given their interest to be part of these larger structures. This could be part of the reason courts can take on a “charismatic” appeal: As Kim Lane Scheppele has argued, the Hungarian Court had successfully portrayed its own mission as part of Hungary’s “return to Europe” (ibid.), thereby overcoming resistance from hostile lawmakers.

IV. Conclusion 45. The point of my discussion has been to show that a comparative theory of the constitutional judiciary in post-Communist states cannot be based solely on the theoretical accounts offered by scholars so far. I argue that there are many contextual factors that have an influence on judicial authority that go beyond institutional bargaining games and circular triadic dispute-resolution processes, and which cannot be traced by merely correlating variables. Those factors defy “modeling” in the strict sense, instead, they require a processoriented “history” told at different levels, which I have identified as the actor, institutional, socio-cultural, and international level. 46. There have been first works which do exactly this, such as the recent analysis, by Radoslav Prochazka (2002), of the development of constitutional justice in the four Visegrad 43

The “judicial colloquy” is used by Procházka (2002) to describe the conversation between the Constitutional Courts and ordinary courts.

25


countries Poland, Hungary, and the Czech and Slovak Republics. Prochazka, who is a lawyer, not a social scientist, shows empirically what is presented here in theoretical form: that constitutional politics cannot be understood without the impact of geography, local legal culture, the behavior of transitional actors (which he calls transitional leadership), and a specific dynamic between socio-economic structures and institutional setup which he calls “transitional political economy”. In his account, the interplay of these spheres have produced the widely different outcomes in the four countries he studies. I will quickly outline his account, and end with a few suggestions how the framework offered here can be used to investigate areas that Prochazka did not look at. 46.1. In Hungary, a strong legal culture favoring independent court law-making, and the desire of elite and population to be the most “European” of all the EU-accession candidates, had allowed for a strong constitutional court to emerge which was able to pursue its own agenda. This was aided by the institutional channel of popular complaint that I have mentioned before and by the fact that the court had to work with a transitional constitution which left many normative areas undecided and to be spelled out by the court. 46.2. In Poland, the court also had to work with a unfinished constitutional document, which lacked, for example, a complete bill of rights. In Poland, however, Procházka claims, a strong belief in parliamentary souvereignty, coupled with the much more limited competences of the court and the right of parliament to review its decisions, kept the court from becoming as powerful as its Hungarian counterpart. 46.3. In the Czech and Slovak republics, by contrast, the constitutions were complete documents which covered all relevant constitutional areas. This left the court much less interpretational freedom. In addition, the standing rules had been created much more strictly than in Poland and Hungary, presumably in response to the experience of the neighboring countries. Prochazka also identifies a strong Kelsenian-legal-positivist tradition in both countries. In the Czech republic, this legal ideology firmly entrenched in the ordinary judiciary led to frequent clashes between the Constitutional Court and the ordinary judiciary, especially the Supreme Court. 46.4. In the Slovak Republic, the Constitutional Court quickly surrendered to the power of the ordinary judiciary and refrained from challenging it. Prochazka explains that it also had to concentrate all its attention to the political sphere: in contrast to the other case studies he presents, in Slovakia the court was confronting an extremely hostile executive and parliamentary majority which sometimes even disregarded its decisions. 47. Procházka’s account is extraordinarily compelling, and what is especially interesting is that very few of the factors he identifies to have played a major role in the developments has been part of the analysis of the approaches surveyed at the beginning of the paper, or only mentioned in passing. 48. How can the analytical framework I have developed in this paper help complement Prochazka’s analysis? He does address all of the analytical levels I have mentioned, the behavior of (transitional) actors, institutional-normative structure, the socio-cultural context, and, in a compelling way, also the impact of the regional and international environment. 48.1. What is largely left out of the analysis is the socialization of the main actors and the political elite, which I have argued, constitutes a major factor to be taken into account. In a different paper (Boulanger 2000b), I have made the argument that the different trajectories of Hungarian and Slovak Constitutionalism cannot be understood without looking at the development of the intelligentsia in the 1970s and 1980s. In Hungary, a western-oriented, 26


technocratic economic, legal and scientific elite group could develop, which was able to travel, work, and study outside the country, thereby absorbing many “western” (or more specifically “European”) ideas. A similar development happened in Poland. In both countries, the idea that politics should be regulated by law was not new. In the former Communist Czechoslovakia, by contrast, contact with the west was extremely limited, and ideas of liberal constitutionalism restricted to a tiny and politically fragmented opposition. This proved to be of lesser significance in the Czech Republic, where this opposition was able to take over power after the “velvet revolution”. 44 In Slovakia, however, the populist Meciar, and his clique of communist cadres-turned-capitalist entrepreneurs had little regard for constitutional values until removed from power in 1998. 48.2. Also, I do not agree with Procházka’s result of a thought experiment he makes (p.263) with the judges of the Constitutional Courts, arguing that the case law of the specific courts would not have come out “significantly differently” if the same judges had served on another countries constitutional court. As he argues himself later (p.275) in the book, And as much as the Visegrád courts were in one way or another affected by the constitution makers' original decisions as to the scope of their operability in constitutional politics, the justices' own cognisance of their role in bringing about social change, as well as their preferences for that or another solution to transition-related moral dilemmas, left visible traces in Central Europe's constitutional case law. So there is clearly an “attitudinalist” impact on the court’s performance, which, however, cannot be quantified, but needs to be explored in terms of the respective’s justices personal biography.45 49. This leads me to a summary: I do not argue that “attitudinal”, “strategic”, and “triadic” explanations of judicial behavior and constitutional politics are not enriching our understanding of these phenomena. Quite the contrary, I think we cannot do without parts of their insights. But what is important is to embed them in a larger framework, one that is sensitive to local context. What role did (constitutional ) law play in the social knowledge of the population of, for example, Hungary. What kind of legal ideology was taught in law schools during Communism in a country and why? How much are lawyers part of the political elite and how does that affect politics? Questions like that are important, and they are not addressed by the approaches I have discussed at the beginning of the chapter. 50. I have argued that context and process is crucial to understand the unfolding of events. These meanings and processes are best captured by “people on the ground”. Not incidentally, Prochazka is a Slovak with reading skills in Polish and Czech. But if we listen carefully, even we “outsiders” can learn and do a good job in explanation. But in order to do that, we need to abandon the quest for the most parsimonious model of all.

44

Long-time Prime minister Vaclav Klaus is known to prefer “efficiency“ over “legalism”. He was not seriously challenged by the Czech court, however, so we cannot know how he would have behaved in a serious confrontation with the court.

45

I assert here, without having the space to develop the argument, that to understand Hungarian constitutional law of the first nine years, one has to know the personality and the philosophy of the first Hungarian Constitutional Court President, László Sólyom. I am convinced that without his leadership, the case law of the HCC would be dramatically different.

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