Constitutional Courts

and the Challenges They Present to Comparative Politics

International Political Science Association

World Congress 2009

12.-16.7.2009

Santiago de Chile

Panel MT08.269 Challenges to Comparative Politics

7.415 words

Prof. Dr. Christoph Hönnige

Technische Universität Kaiserslautern

Assistant Professor for German and Comparative Politics

Erwin-Schroedinger-Straße

Gebäude 57, Raum 480

D-67653 Kaiserslautern, Germany

Phone: 0049-631-205-2013

Fax: 0049631-205-3850

Email: hoennige@sowi.uni-kl.de

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Constitutional Courts and the Challenges They Present to Comparative Politics

1. Introduction: Challenges Constitutional Courts present to Comparative Politics

Constitutional Courts play an important role in our understanding of comparative politics.

With their right of constitutional review, they are able to stop legislation passed by

parliament. Furthermore, the rulings of constitutional courts usually allow them to define a

framework of possible policies for future governments. Thus, on the level of political systems,

courts can be understood as veto players (Tsebelis 2002; Volcansek 2000; Wagschal 2006,

2009) or elements of Consensus democracy (Lijphart 1999). Some authors actually take the

additional step of declaring parliamentary sovereignty dead, replacing it by the sovereignty of

the courts (Gibson 2003; Stone Sweet 2000). In a sense, this is supported by the fact that most

new democracies introduced a centralized constitutional court with the power to nullify

legislation and thus to revert decisions by parliament and government.

This perceived role stands in stark contrast to our knowledge about the mechanisms

determining the influence of courts in political systems. Gibson argued in 1998 that law and

courts are the most neglected subfield in comparative politics and that comparators know

preciously little about judicial systems outside the United States (Gibson 1998). This is still

true today. We have insufficient systemic knowledge about composition rules determining the

position of courts in policy space, access routes of political actors to the courts regulating the

amount of laws courts are involved with and isolation of the court from political pressure

affecting the likelihood of strategic action by the judges. However, to properly understand the

role of courts on the level of political systems, we need to systematically analyse institutional

rules governing the interaction between courts, government and parliament and within

constitutional courts.

The main focus of interest with regard to European courts has been the abstract review

procedure, which can be used by the parliamentary opposition to litigate against government

legislation. Its effect is supposed to be a stark increase in Judicialization as the opposition has

a strong incentive to use the procedure against government legislation (Stone 1992b; Stone

Sweet 2000). The prime example for this argument has always been the French Conseil

constitutionnel. Articles have been written about other courts repeating this argument. This

view was criticised by Vanberg (Vanberg 1998a, 1998c) who argued that the activism of a

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court and electoral considerations might give an incentive not to sue. Furthermore, he found

support that the activism of the court depends on its strategic considerations as he argued for

the German case (2001, 2005). However, the results of the research have not been connected

to comparative research about courts.

The aim of this paper is to evaluate the state of our knowledge with regard to constitutional

courts in comparative perspective. It outlines a future research agenda and a number of

research questions for constitutional courts. These questions arise if we actually want to

integrate constitutional courts properly in our concepts of comparative politics like veto

players theory or Westminster and Consensus democracy.

The paper identifies four main challenges to comparative research, which are subsequently

discussed. First, we will have a look at the research gap on the micro level with regard to

judges’ preferences, intra-court rules and inter-institutional relationships. Second, the

challenge of finding means to compare courts on the macro level, especially with regard to

their degree of activism, is tackled. In a third step, challenges with regard to data and methods

are outlined and finally, the effects of courts with regard to democratic stability are shortly

discussed.

Thus, the paper proceeds as follows: At first there is a short overview of constitutional courts

around the world. Next, the main focus of current research on courts will be outlined, and

subsequently, the four challenges that constitutional courts present to Comparative Politics are

outlined, each in one section.

2. Constitutional Courts in Comparative Perspective

Before the Second World War, constitutional courts were anomalies in the political system of

the United States and Austria. However, after WWII, they steadily spread across Europe and

the rest of the world in several waves. In Europe, they were introduced in Germany (1951),

Austria (1953), Italy (1956), France (1958), Spain (1977), Portugal (1982), Belgium (1984)

and all new democracies in Eastern Europe (1986-1996). In the third wave of

democratization, courts were also introduced in all other parts of the world. Of 72 countries

which were free or partly free in 2000 (but not yet in 1986), 42 countries introduced a

constitutional court (Ginsburg 2003: 6-8).

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The new courts in Spain, Portugal and Eastern Europe were mainly modelled according to the

Supreme Court of the United States, the German Bundesverfassungsgericht and the French

Conseil constitutionnel. With regard to the electoral system, they followed the Supreme Court

and the French court; with regard to the competences the German court is exemplary.

Generally it can be said that in Western Europe, judges tend to be elected consensually, while

in Eastern Europe, they are elected with simple majorities. Also, the Eastern courts usually

have more competences than their Western counterparts (Hönnige 2008).

Interestingly, democracy seems not to be a prerequisite for the institutionalization of a

constitutional court. Yugoslavia, for example, introduced a constitutional court in 1978 to

solve disputes within the federal system (Höcker-Weyand 1978). Poland introduced a court in

1982 to ease pressure from the Solidarność movement. The latter court was only partly able to

act as a constitutional court, the Sejm had the power to override the court’s rulings with a 2/3-

majority (Garlicki 1996) – this is hardly a barricade in a one-party system.

Constitutional review can be divided into two main systems: a so-called German-Austrian

model of centralized review following the propositions von Hans Kelsen and the model of

decentralized review. Both systems vary with regard to their degree of centralization,

competences, litigants and the particular time of review (Cappelletti/Ritterspach 1971: 81ff.;

Epstein/Knight/Shvetsova 2001a, 2001b; Shapiro/Stone 1994: 400; Stone Sweet 2002: 79-80;

Vanberg 2005a: 31).

In the centralized model, only the constitutional court is allowed to review laws. If the court

voids a law the result is binding for any other actors. If a lower court comes to the conclusion

that a law is in conflict with the constitution, it has to refer the case to the constitutional court.

In a decentralized system, the lower courts can decide not to apply a law if they consider it in

conflict with the constitution; however, their rulings are not binding for other courts, they are

only precedents. Centralized courts are equipped with abstract and concrete review

procedures and usually constitutional complaints; in the decentralized system, the only

procedure is concrete review. Abstract review allows courts to review laws independently of a

concrete case and individual affection, while in concrete review a suitor has to argue that he

personally suffers from the effects of a law.

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Moreover, there are different types of litigants in both systems. In the centralized system,

there is a wide variety of possible demanders. In addition to lower courts (concrete review)

and citizens (constitutional complaint), political actors can litigate as well (abstract review).

This usually includes governmental actors, a certain quorum of members of parliament and

regions or states in federal and decentralized systems. Centralized systems often additionally

know the so-called a priori review. This means that the law is undergoing abstract review

before it is promulgated – in fact, these courts act as third chambers. Decentralized systems

only know a posteriori review – the law has to be applied before a review can take place.

The following table gives an overview of countries with constitutional courts in Europe. It

includes the name of the court, the year of its foundation and the year it took up business. All

European countries with the exception of Estonia and Portugal follow the centralized model.

Country Constitutional Court Founded in Active since Belgium Cour d'Arbitrage 1983 1984 Bulgaria Konstitutzionen Sud 1991 1991 Germany Bundesverfassungsgericht 1949 1951 Estonia Vabariigi Riigikohus 1993 1993 France Conseil constitutionnel 1958 1959 Italy Corte costituzionale 1948 1956 Latvia Satversmes tiesa 1996 1996 Lithuania Konstitucinis Teismas 1993 1997 Austria Verfassungsgerichtshof 1920/1945 1923/1946 Poland Trybunal Konstytucyjny 1982/1997 1985/1997 Portugal Tribunal Constitucional 1982 1983 Romania Curtea Constitutionala 1992 1992 Spain Tribunal Constitucional 1979 1980 Slovakia Ústavný súd 1993 1993 Slovenia Ustavno sodišče 1994 1994 Czech Republic Ústavní soud 1993 1993 Hungary Alkotmánybíróság 1989 1990

Table 1: Constitutional courts in Europe

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3. Mainstream Research: The Judicialization Hypotheses

The Judicialization hypothesis is the central research paradigm on constitutional courts

outside the United States (Hirschl 2004; Stone 1992a; Stone Sweet 2002; Tate/Vallinder

1995). The hypothesis claims that the court activity increasingly limits the ability of political

actors to take political decisions. Government and Parliament are less able to make laws

without taking the Constitutional Court into account. In this view, constitutional courts are a

negative legislator. They are not able to make laws but they can abrogate them and thus

strongly influence political decision-making by nullify laws passed and promulgated by the

executive and the legislative. Judicialization occurs in various ways: Politicians can take legal

arguments into account when drafting and debating proposals (Kommers 1994; Landfried

1984, 1988; Stone 1994), they can want to avoid some difficult decisions and thus move

competencies from parliament to the court (Vallinder 1995), or courts themselves can act as

positive legislators by outlining feasible options for problem solutions in their rulings (Tate

1995). As a result, some authors claim that due to the institutionalisation of constitutional

courts, in many countries parliamentary sovereignty is on its deathbed, while the new

sovereigns are the courts. After all, these can overturn the parliament’s decisions, but their

decisions cannot be overturned (Stone Sweet 2000).

Stone’s position is that especially the right of parliamentary minorities to initiate abstract

review against new governmental legislation leads to an increase in judicialization. Abstract

review initiation is basically cost-free and thus opposition parties initiate reviews rather often

and courts will strike down laws with a certain probability. This is the so-called direct effect

of judicial review: courts nullify laws. As a reaction to the review threat, the government

starts to restrain itself when drafting new laws. It employs legal specialists to analyze whether

proposals are probably in line with the constitution and likely to be accepted by the court.

This is the so-called indirect effect, also named autolimitation. However, the government’

autolimitation measures are not always successful and laws will still be declared void by the

court. This reduces the options a government has even more. Thus, Stone comes to the

conclusion that constitutional courts are basically third chambers in the legislative process

interacting with the other two chambers (Stone Sweet 2000). The difference is that courts are

not always involved in the legislative process and have to outline legal reasons for declining a

law. If one takes the concept of the third chamber seriously, courts are indeed veto points or

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veto players that are able to stop a move of the status quo (Alivizatos 1995; Stüwe 2001a,

2001b; Tsebelis 2002; Wagschal 2006, 2009).

The picture described by Stone Sweet is only part of the story as from an institutional point of

view, the French Conseil is a deviation compared with other counterparts (Hönnige 2008).

This also results in a different court usage by opposition parties: while in France about 10% of

the laws are referred to the Conseil, in Germany only 2.5% were referred in the years between

1974 and 2003. This rate of success is equally high at about 50%.

However, most cases are referred to courts not via an abstract review procedure initiated by

opposition parties, but by concrete review and constitutional complaints. While the German

court has to deal with 5.5 abstract reviews and competence conflicts between Länder

governments and the federal governments per year on average (1995-2005), there were 33

concrete reviews and 5049 constitutional complaints. Actually, the most interesting cases are

usually the constitutional complained procedures. Overall, the court has nullified about 5% of

all German laws (Landfried 1992). This is a stronger direct effect than that of the second

chamber, which actually terminated only 1,08% of law proposals in the time between 1949

and 2003 (Stüwe 2004).

With regard to the indirect effect, there are a lot of smaller case studies for various courts in

Europe (Landfried 1988, 1992; Llorente 1988; Pizzorusso 1988; Sterett 1994; Stone 1992a,

1992b; Stone Sweet 2000; Volcansek 1994). However, a lot of questions still have not been

answered: it is not yet clear how the process of autolimitation really works. At what stage of

the legislative process are judicial preferences taken into account? Does autolimitation occur

always or is it restrained by the courts’ overall propensity to nullify laws or majorities within

the court (Hönnige 2009; Stone Sweet 2000; Vanberg 1998a)? The closer the position of the

court is to that of the government, the less autolimitation should occur. Additionally, it is

unclear what the effects of upcoming elections are. Are governments prepared to take more

risks before elections, since the court will probably decide the case after the election?

The strict focus on the Judicialization hypothesis separates the research agenda for the

constitutional courts outside the US from that of the Supreme Court. Research on the Supreme

Court is separated in various schools. They follow more or less the division between neo-

institutional schools: Attitudinalists, strategic approaches and interpretative approaches

(Maveety 2003). Attitudinalists focus exclusively on political preferences of judges and intra-

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institutional rules in explaining Supreme Court behaviour (e.g. Segal/Spaeth 2002). Strategic

approaches vary a lot more in possible motives of judges, since they also take legal and

procedural preferences into account; they also undertake research about the inter-institutional

connections between Supreme Court and other actors (e.g. Epstein/Knight 1998)).

Researchers using interpretative approaches explain court behaviour by historical and

sociological variables (e.g. Clayton/Gillman 1999).

Additionally, the extent of research differs inside and outside the US. The table below counts

the number of articles in US journals, comparative journals and two national journals, all of

which are refereed and SSCI indexed. Research in the US about the Supreme Court is more

intense than in all other constitutional courts together. Basically, in the years between 1995

and 2008, more articles have been published on the Supreme Court in the American Journal

of Political Science alone than in Comparative Political Studies, the European Journal of

Political Research, West European Politics, the Journal of Theoretical Politics and the two

national Journals, the German Politische Vierteljahresschrift and the Revue Française

together.

Zeitschrift 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Summe

Politische Vierteljahresschrift 1 1

Revue Française 1 1 1 3

European Journal of Political Research 1 1 2

Comparative Political Studies 1 2 1 2 6 1 13

West European Politics 2 1 2 1 1 2 1 10

Journal of Theoretical Politics 1 3 2 1 1 1 1 10

American Journal of Political Science 3 9 3 4 2 2 3 3 3 2 1 3 2 2 42

American Political Science Review 3 3 1 2 1 3 2 3 1 1 1 2 4 4 31

Table 2: Number of articles concerned with courts in selected journals

4. Challenge 1: Limits to Judicialization on the Micro-Level

The first challenge is to systematically analyze court behaviour on the micro level to

understand the judges’ preferences and their effects on intra- and inter-institutional rules. This

is necessary to understand the variables that foster or limit Judicialization. While research on

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these matters for the US Supreme Court is intense, courts outside the US have only been

sporadically analyzed in this regard: preferences and institutional rules basically constitute a

black box.

The first question arising is how constitutional courts are composed and what the effects of

the composition procedures on judges’ preferences are. In research for the Supreme Court, the

effects of a single composition procedure are intensely discussed (Moraski/Shipan 1999;

Szmer/Songer 2005), while we find a strong variation of procedures across Europe and the

rest of the world. The systems vary between sequential (in the US, Baltic States) and

proportional procedures (in Germany, Austria), majority rules (appointment by an individual,

simple, absolute and various qualified majorities) and the number of institutions involved (1

to about 5) (Ginsburg 2003; Hönnige 2008). At the moment, it is unclear what the general

effects of the various procedures are and there is no systematic overview on which judges

have been elected by which institutions - even if we find some country studies providing

names and sometimes even part membership of former and sitting judges. Unlike in the US

case, the election procedures are often secret and not much is known about future judges. A

notable exception here is Austria, where public hearings are held.

As a result, not much is known about the judges’ identities and their preferences. Judicial

preferences are the founding stone of any analysis of the Supreme Court and justice

preferences have been intensely debated (e.g. Baum 1992, 1994, 1997; Epstein/Knight 1997;

Macey 1994; Posner 1993; Segal/Spaeth 2002; Spaeth 1979). All three schools

(Attitudinalists, Strategists and Interpretativists) argue that policy preferences are the main

driving forces behind the behaviour of judges in the US Supreme Court. At the same time,

research paradigms vary with regard to the question of whether there are other types of

preferences such as procedural preferences or legal preferences, whether preferences are

stable, and where they are formed. For courts outside the US, first glimpses inside the system

are available. Magalhaes and Hönnige find support for the policy preferences hypothesis for

Portugal, Spain France and Germany (Hönnige 2009; Magalhães 2003). Ramseyer finds

support for the Japanese case (Ramseyer/Rasmusen 2001). This leads to the conclusion that

judges outside the US do not deviate much from those inside. However, a systematic test of

this core assumption is required.

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This question is important for the integration of constitutional courts into concepts of

comparative politics. Tsebelis (Tsebelis 2002) argues that constitutional courts are absorbed

as veto players as they are exclusively composed by other veto players and thus are situated in

the core of the other players. This is a rather strong assumption and a look at the composition

rules suggests that it might not hold true. On the one hand, not all institutions nominating and

electing judges are veto players in their political systems. On the other hand, if there are only

a few veto players (especially only parties in government), courts might be absorbed at some

point in time but not after a government change – in that case they might even oppose the

government diametrically. Thus, we should find situations in which the degree of

Judicialization increases and others in which it decreases.

With regard to intra-institutional rules, basically everything has been tested for the US

Supreme Court and nothing for other courts. The focus of research has been the assignment of

opinions to judges and majority rules within the court for e.g. case selection, decision-making

(Epstein/Knight 1998; Maltzman/Wahlbeck 1996a; Maltzman/Wahlbeck 1996b; Spriggs

1999) and dissenting opinions (Brace/Hall 1997; Epstein/Segal 2001; Hettinger 2004). The

lack of research here stems from the fact that at most constitutional courts outside the US, the

internal decision making process is not public. Conference votes are recorded but not

published and individual votes are recorded but locked away. In the German case, the files are

send to the federal archive after 10 years and may be opened after 30 years – however, this

does not include the individual votes. They remain locked away in a separate envelope

forever.

With regard to inter-institutional relationships, the matters of court access and judicial

independence are of interest. Court access strongly varies internationally with regard to court

access routes and prerequisites for the initiation of review. So does the caseload and the

docket of the courts. Constitutional courts often offer various routes of access. In Europe, the

best known route is abstract review, allowing political actors (e.g. minority parties) easy

access to the court. Usually, the actors have only to reach a certain quorum of members of

parliament (usually between 10% and 33%) in the first or second chamber and to access the

court straight after the government passed legislation. The court offers an opportunity that is

not granted in usual parliamentary business – to stop unwanted legislation. The traditional

Judicialization hypothesis assumes that minority parties access the court as often as possible.

However, there might also be variables limiting the propensity of these actors accessing the

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court and by that limiting the degree of Judicialization. Minority parties might want to avoid

defeat before the court and therefore use the court more often when the government has not

selected the majority of judges (Hönnige 2007; Magalhães 2003). Alternatively, they may

simply want to avoid electoral costs before an upcoming election (Vanberg 1998a, 1998b).

But apart from abstract review, little is known about the other procedures, even though

concrete reviews and constitutional complaints constitute the bulk of the caseload. The effect

of access routes to a court on the power of a court is also unclear.

Judicial independence and the separation of powers is another interesting issue. While the

Judicialization hypothesis assumes that courts are unrestrained actors, we find a lot of

institutional rules giving political actors a venue for putting pressure on the court or individual

judges with regard to policies or office. However, the degree and thus the power of the court

may vary. This issue is also discussed for the US Supreme Court as separartion of powers

game (Caldeira 1987; Durr 2000; Flemming/Wood 1997; Gibson 2003; Mishler/Sheehan

1996; Mondak/Smithey 1997).

Venues for pressure might be the re-election of judges (if possible), which has been denied to

the President of the Hungarian court (Schwartz 1999), the threat of an impeachment

procedure as non-court actors are involved (e.g. Estonia, Lithuania, Poland, Slovenia,

Slovakia and Russia) or the suspension of the whole court (Epstein/Knight/Shvetsova 2001b;

Ganev 2002; Schwartz 2000: 159). With regard to policies, a number of measures can be

thought of, too: the formal override of rulings by parliament, which was possible for example

in Poland until 1999 and in Romania until 2001, the reduction of the court’s area of

jurisdiction (Epstein/Knight/Martin 2001; Ferejohn/Weingast 1992; Hausegger/Baum 1999;

Meernik/Ignagni 1997; Shipan 2000; Whittington 2001, 2006) or the denied implementation

of court rulings (Vanberg 2001, 2005a, 2005b). Vanberg argues that the government may

avoid implementing court rulings when an issue is complex and unpopular.

The matter of judicial independence compared to other issues is under intense observation

(Herron/Randazzo 2003; Larkins 1996; Melone 1997; Vanberg 2000). A number of variables

that might regulate the degree of independence have been identified. Most important seems to

be the issue of public support (Gibson 1998; Gibson 2003; Vanberg 2001, 2005a). This is the

main resource of a constitutional court: the more support the court receives from the public,

the less dependent it is and the more active it can be.

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5. Challenge 2: Macro-level Analysis and the Identification of Micro-Macro-Links

The second challenge is to comparatively measure and explain the varying degree of activity

of constitutional courts. This is necessary to integrate courts in concepts of comparative

politics.

So far, only a few attempts have been made to measure activity comparatively (Alivizatos

1995; Cooter/Ginsburg 1996; Lijphart 1999; Smithey/Ishiyama 2000). Alivizatos (1995)

measures "Judicial politicization" for 18 West European countries. He divides countries along

the centralized/decentralized line of judicial review. Then he groups both categories again

based on the qualitative literature into countries with rather active courts and those with

restraint courts. This leads to a four-point-scale. Lijphart (1999) classifies 36 democracies

based on qualitative literature into countries with and without judicial review and subdivides

countries with a centralized court into three subcategories. Again, the result is a four-point-

scale. However, both scales suffer from fatal flaws: as they are entirely dependent on the

authors’ evaluation of country studies, they can not be reproduced or expanded and they only

allow for a small degree of variation. The third scale is by Cooter/Ginsburg (1996). They

classify countries according to an expert survey and the implementation of a special customer

protection policy by constitutional courts. This scale can not be expanded, either.

Unfortunately, all three authors did not include constitutional courts in Eastern Europe and

other new democracies – thus leaving a lot of interesting cases aside. The fourth suggestion

has been made by Smithy/Ishiyama (2000). They construct a seven point institutional index to

measure the institutional power of the new courts in Eastern Europe. However, they do not

measure activity and a lot of potential explanatory variables are used to construct the index.

Therefore, it cannot be used to explain the varying degree of activism. Nevertheless, these

scales are typically used in comparative politics to evaluate the impact of constitutional courts

on political systems.

A feasible alternative would be to count the number of laws totally or partly invalidated by

the courts and divide them by the number of laws promulgated – a rather simple index that is

easy to interpret. It has not been constructed so far and data are not available. However, such

an index of activity might exhibit a number of problems: the number of actually nullified laws

does not necessarily give an indication about the strength of a court, but only its activity. As

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discussed in section 3 of this paper, there are direct and indirect effects of courts: the direct

effect are the nullification of a law, the indirect effect is the autolimitation of the government

to avoid defeat at the court.

This leads to the conclusion that the relationship between the activity and the actual strength

of a court as veto, veto player, or consensual element is not linear but rather follows a U-

shape. A weak court is not able to nullify a high number of laws and a strong court does not

need to nullify many laws as the effects of autolimitation are strong. We should thus only

expect a lot of laws to be voided by medium-strength courts. However, there are also strategic

actions between the court and other actors, which might influence these considerations: this

includes lower courts, the public, second chambers and referenda.

Apart from nullifying laws and partly nullifying laws, courts are also able to declare them

constitutional but to interpret and regulate in detail the ways a law can by applied. While the

first procedure just stops the law, the second procedure upholds it formally, but can actually

limit the room of manoeuvre for the government and parliament strongly. At the moment it is

unclear which kind of ruling has the strongest effects on current and future governments.

To develop a measurement concept for court activity in a comparative manner, it thus seems

important to understand the interaction between constitutional courts and other actors such as

government, parliament, second chambers and referenda. Otherwise it seems not possible to

interpret the level of activity as court strength correctly. In the end, to understand the macro

level, a link has to be created between macro and micro-level.

6. Challenge 3: Missing Data and Methodological Challenges

The third challenge is to collect comparative data on constitutional courts and to develop

methods to deal with the courts’ peculiarities.

For the US Supreme Court, the Supreme Court database allows to conduct research for the

years between 1953 and 2007, including more than 10.000 rows and more than one-hundred

variables. The database allows for the use of background variables, case variables,

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chronological variables, substantive variables, voting variables and outcome variables for

analysis.

Other than that, only a few comparative datasets for constitutional courts are available.

Overviews of institutional rules regarding courts for new democracies can be found in

Ginsburg (2003), for the EU member states in Hönnige (2008), for Eastern Europe in

Smithey/Ishiyama (2000) and for Latin America in Navia/Rios-Figuerioa (2005).

Unfortunately, apart from the activity measures already mentioned (Alivizatos 1995;

Cooter/Ginsburg 1996; Lijphart 1999), no datasets about court rulings are available. The

courts themselves provide only limited information about their case load in statistical form or

as documents containing the judgements. More often than not, just a selection can be found,

which, however cannot be used for the setup of databases.

With regard to methods, there are at least two challenges. Firstly, unlike the case of the US

Supreme Court, individual votes of judges are usually not recorded and conference

proceedings are not available. This strongly limits the analysis of intra-court decision-making;

the explanation of the courts’ actions as a collective actor becomes much more difficult and

ecological inference problems arise (Elff 2008; Gschwend 2006). A possibility to bypass this

problem is to focus on dissenting opinions, which are recorded and made public, but might

exhibit a bias. It is also necessary to find and develop a common political space, in which

constitutional courts, lower courts and other political actors can be placed. To find this space,

bridging assumptions have to be made (Bailey 2007; Epstein 2007). Finally, it seems

necessary to develop measures for evaluating court rulings with more technical support. A

possible idea would be the development of tools like “wordfish” or “wordscore” to interpret

rulings. However, an underlying theory of how judges use language – like the saliency theory

for the analysis of party manifestos – does not exist yet.

7. Challenge 4: Identifying the Effects on System Stability and Democratisation

The fourth challenge is to understand the role of constitutional courts in building and

maintaining democracies. This is a question that has already been raised by the inventor of the

centralized court Hans Kelsen (Kelsen 1931). He makes the interesting argument that a court

is not able to prevent democratic breakdowns.

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Two arguments are used to explain the introduction of constitutional courts (Alivizatos 1995):

Courts are necessary to resolve conflicts within federal systems and courts were introduced in

newly democratised or re-democratised countries to protect civil rights. In new democracies

they are established as stabilising factor for political systems (Ginsburg 2003;

Herron/Randazzo 2003; Smithey/Ishiyama 2000). Larkins (Larkins 1996) even argues that the

introduction of constitutional courts lies at the heart of democratic consolidation as it is

enables the mediation of conflicts between actors and limits the arbitrary use of power.

However, these important and interesting considerations have only been sparsely tested. It is

also unclear whether constitutional courts can prevent a return to authoritarianism after

democratisation or whether they can help shifting political systems from authoritarianism to

democracy.

While the literature on democratisation argues that constitutional courts foster democracy, the

comparative literature on democratic political systems indicates that the result is the opposite

(Tsebelis 2002). Tsebelis argues that many veto players with large ideological differences

lead to policy stability. If a constitutional court is a veto player, it increases policy stability.

Policy stability is considered to have negative effects: it undermines the ability of political

systems to deal with external shocks (e.g. an economic crisis). This will lead to regime

instability. The argument can be made that courts have a rather negative impact on the

stability of democratic systems.

8. Conclusion: Challenges Constitutional Courts present to Comparative Politics

In our concepts of comparative politics constitutional courts play an important role. They are

considered to be veto points, veto players or elements of consensus democracy (Lijphart

1999; Tsebelis 2002; Volcansek 2000; Wagschal 2006, 2009). Additionally, during the third

wave of democratization, about two thirds of the new democracies installed some kind of

constitutional court. Thus, while being an exceptional institution within the political systems

of a few countries like the United States or Austria before the Second World War,

constitutional courts have become commonplace.

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However, we are currently unable to properly classify constitutional courts, to map and

explain their activity and to integrate them empirically in our concepts of comparative

politics. Research has focused on the United States Supreme Court and a number of country

studies, especially for Western and Eastern Europe. However, only few articles tried to

analyze courts in a truly comparative manner. While research on the US Supreme Court

shows various clearly defined research agendas, research on courts outside the US with few

exceptions was mainly focused on the Judicialization hypothesis, for Europe especially on the

minorities’ parties’ right to litigate against governmental legislation. The result is a major

research gap.

The paper outlined four challenges constitutional courts present to our concepts of

comparative politics. The first challenge is to deepen our understanding about constitutional

courts on the micro level. We need to identify the justice’s motives to learn whether we can

integrate them as policy-seekers into spatial models. We need to analyse the impact of the

variation of intra-court rules to understand how decisions are made within the institutions and

to analyse inter-institutional relationships with other actors to understand how and when cases

are filed by litigants, if the implementation of court decisions is avoided.

The second challenge is to find a comparable measure for court strength, to explain the

observable variation and to connect this macro level measure to our theoretical framework on

the micro level. Current measures are inadequate. Replacing them with a simple activity

measure may also be inadequate as court activity and court strength might not have a linear

relationship and strategic considerations of actors involved could distort the results.

The third challenge is the availability of data and methods in comparative research on courts.

Comparative datasets for institutions and rulings have to be built and integrated into existing

datasets dealing with legislation in different countries. Methods, especially for the

identification of the judges’ preferences and the textual interpretation of rulings, have to be

developed.

The fourth challenge is to understand the courts’ role in building and maintaining democracy.

Are they reliable institutions citizens that count when individual rights are under threat? Do

courts stabilize or destabilize political systems?

16

To sum up, more research about constitutional courts and their effects within political systems

is needed. While for the US Supreme Court, the making of judicial decisions has been

demythologised, for most courts outside the US this is not the case.

9. Reading

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