[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Eszter Bodnár reviews Constitutional Politics and the Judiciary: Decision-Making in Central and Eastern Europe (Kálmán Pócza ed., Routledge 2019)]
–Eszter Bodnár, Associate Professor, ELTE Eötvös Loránd University, Budapest
The constitutional systems of the Central and Eastern European region have always held an important place in comparative constitutional research projects. In the beginning of the 1990s, the world followed the democratic transitions and the establishment of new constitutional courts, which had no real precursors in most of the countries, with close scrutiny. Recently, the increased interest in the region is due to the constitutional backlash that constitutional courts in these countries, especially Poland and Hungary, are facing.
The volume edited by Kálmán Pócza brings the constitutional courts of the region into the limelight again, covering both of the above-mentioned constitutional periods from a fresh perspective. Instead of continuing the work on theoretical and legitimacy issues, two research questions remain at the center of the book: how differentiated are the decisions of the Central European constitutional courts (diversity of judicial decisions); and to what extent have these differentiated decisions of Central European constitutional courts constrained the legislature’s room to manoeuvre (strength of judicial decisions)?
To answer these questions, the participants in the project developed a new research methodology that seeks to move beyond the dichotomous categorization of constitutional court decisions (rejection – striking down). Using rulings instead of decisions as the unit of examination (p. 11), the project encodes them according to their strength, taking into account not only the order (rejection, unconstitutionality by legislative omission, procedural unconstitutionality, constitutional requirement, substantive unconstitutionality, constitutional interpretation in abstracto) but also such factors as completeness, temporal effect, and prescription. Altogether these factors yield 79 (!) possible combinations of the elements that show the strength of judicial rulings.
The volume contains six case studies, presenting the results of the project which studied six constitutional courts from the Central and Eastern European region: the Czech Constitutional Court (Katarína Šipulová), the German Federal Constitutional Court (Oliver W. Lembcke), the Hungarian Constitutional Court (Kálmán Pócza, Gábor Dobos, Attila Gyulai), the Polish Constitutional Tribunal (Artur Wołek, Iga Kender-Jeziorska), the Romanian Constitutional Court (Csongor Kuti), and the Slovak Constitutional Court (Erik Láštic, Max Steuer). The chapters give an overview of the courts’ history, composition, and competences. Using the database of the project, the chapters analyze the strength of the majority rulings and the dissenting opinions, assessing the trends from the last 25-30 years. They also provide the reader with a network analysis of the dissenters and an assessment of the performance of the presidents of the courts in the given time period.
The main value of the volume is that it draws attention to the fact that the practice of constitutional adjudication in the Central and Eastern European region is more diverse than we expected based on the previous literature. The courts are not only different in their composition and competencies but also in their use of a range of tools to position themselves within the system of the separation of powers. While the role of the constitution-making power is crucial in this field (as it created a weaker constitutional court, for example, in Romania, p. 158), the courts under study have a wide margin to maneuver through the combined use of their existing tools. This happens partly because of legal considerations (for example, to spare the legal system or to ensure the stability of law), while also taking political factors into account.
As a first comprehensive empirical analysis of the topic, the volume overcomes some of the long-established aphorism of comparative law, especially about the strength of decisions. It turns out that based on the dataset analyzed, the first Slovak court (1993-2000) was the most powerful court in the region, while on the other end of the spectrum, the Romanian Constitutional Court and the Polish Constitutional Tribunal were rather moderate and restrained. The empirical data also disprove the main political argument of recent years that constitutional courts needed new constraints as they became extremely powerful institutions of the state system, endangering the democratic institutions. On the contrary, they proved to be rather careful and highly self-restrained (p. 2).
This brings us to a point that the reader may miss from the volume. As admitted by the authors, the limitation of the project (p. 25) is that it cannot give a comprehensive analysis of the strength of the courts. The deeper the reader goes into the quantitative results, the clearer it becomes that the research questions cannot be answered without qualitative analysis.
First, the strength of the courts depends on further formal conditions, such as the workload of the court, the quality of the petitions, the methods used by the court to select the cases (if there is a filtering mechanism), or the timing of the decision.
Second, the strength of a decision and the strength of a court depend in large part on the topic of the case(s). One decision in a policy field that is important for the government, for example, a decision that helps the government to realize its governance goals or is of particular symbolic value, counts more in the assessment of the court’s strength than a dozen judgments in politically less relevant cases. Although some of the case studies deal separately with politically important cases (Czech Republic – p. 43, Germany – p. 85, Poland – p. 144), this is beyond the basic scope of the project.
Third, the political context of the decision is of utmost importance. For example, an otherwise very constraining tool, the constitutional interpretation in abstracto can lose its strength when it serves the initiating government’s political goal (as happened, for example, in the decision of the Hungarian Constitutional Court introducing constitutional identity into Hungarian law).
Using the results in a more contextual analysis could be a direction worth following in the next phase of the research project in order to offer a clearer view of the history of these courts. It could also help us to better understand the tensions between constitutional courts and parliaments that have arisen in the recent years.
Suggested Citation: Eszter Bodnár, Review of “Constitutional Politics and the Judiciary: Decision-Making in Central and Eastern Europe” (Kálmán Pócza ed.), Int’l J. Const. L. Blog, Nov. 9, 2019, at: http://www.iconnectblog.com/2019/11/book-review:-eszter-bodnar-on-“constitutional-politics-and-the-judiciary:-decision-making-in-central-and-eastern-europe”-(kalman-pocza-ed-)