Role Theory, Democratization and ComparativeConstitutionalism: Constitutional Courts as "Guardians",

"Umpires" and "Founders"Christian Boulanger1

Paper to be presented at the 2015 Law and Society Annual Meeting(Seatte, May 28 - 31, 2015)2

I.

Since its inception in the U.S. and in Europe,3 constitutional review of legislation and of ex-

ecutive action has been the subject of a highly controversial debate4, the main theme being

the incompatibility of „activist“ constitutional review with basic principles of democratic ac-

countability. This normative debate is partially mirrored in the political science analyses of

the phenomenon of the increasing influence of judges in political decision-making (Cappel-

letti, 1988; Tate/ Vallinder, 1995; Stone Sweet, 2000; Hirschl, 2004, Sadurski, 2005). Neither

normative nor empirical thinking has been able to find a consensus on whether constitutional

review is a „good“ or „bad“ thing in general. This is not surprising, since the answer to this

question depends on the context. Whether the institution of constitutional review serves or

corrodes democracy hinges on the particular case, the historical background, the actors in-

volved, and the effects that particular rulings have on the political landscape.5

The interest for the issue of constitutional review saw a burst of interest after the momentous

political changes of 1989 in the region over which the Soviet Union had held sway since the

end of the Second World War. Almost all of the countries that shook off the Leninist political

systems and Stalinist organization of the economy6 installed a centralized constitutional court

(Brunner, 1992; Schwartz, 1993). Some of these courts have been active players in the trans-

1. Christian Boulanger, Forum Transregionale Studien (Berlin), email: christian.boulanger@trafo-berlin.de

2. A previous version of this paper was presented at: Advocates or Notaries of Democracy? A ComparativeSocio-legal Analysis of the Role of Constitutional Courts in Political Transformation Processes (September22-24, 2011, Humboldt-Universität zu Berlin). This paper summarizes key findings of my dissertation(Boulanger, 2013) and takes up some points that I could not explore in the book.

3. Marbury v. Madison (1803), Kelsen, 1929; Kelsen, 2008.

4. See the vast and well-known literature on the problem of the „countermajoritarian difficulty“ (Bickel).

5. Mauro Cappelletti has put it aptly: „The 'mighty problem' of the legitimacy of judicial review cannot besolved by means of purely speculative, abstract solutions valid for any place and time. Indeed there are nosuch universal solutions; and surely a page of realistic comparative analysis can be more worthy than manybooks of such abstract speculations.“ (Cappelletti, 1989:206).

6. For the terminology that differentiates real-existing „Leninism“ and „Stalinism“ from utopian „Commu-nism“ see Jowitt, 1992.

formation of politics, economy and society toward democracy and market capitalism, others

have been less eager to intervene, others still have been silenced by powerful executives

(Schwartz, 2000; Procházka, 2002; Sadurski, 2002; Trochev, 2008). For Schwartz, for exam-

ple, the courts have been a „surprising success“ (Schwartz, 1999), and for Procházka (op.cit.),

the courts have „accomplished“ their „mission“: to bring their countries closer to the legal

standards of modern constitutional democracies, in particular, of the Member States of the

EU.

At the same time, there was little critique of these developments. In Germany, the legal and

the political science community welcomed the developments, hailing the success of the Ger-

man Constitutional Court as an „export model“ (Wahl, 2001; von Beyme, 2015). There was

more skepticism in the U.S. literature. For example, Stephen Holmes (Holmes, 1993) has

criticized the „overly prestigious“ constitutional courts of the region, which had, in his view,

threatened democratic consolidation. Wojciech Sadurski (Sadurski, 2005) has provided a crit-

ical, but more balanced account of the activity of constitutional courts. He argues that there

are good reasons for constitutional review, but expresses his concerns about the empirical ac-

count: in his view, many courts have abuses their extensive powers by interfering in matters

that should have been decided by the democratically elected parliaments. This „paternalism“,

Sadurski claims, has a detrimental effect on the development of democratic culture in the

region.

It seems to me that we are still left with three questions: First, the normative question: can

any general statement be made about the role that constitutional courts should play periods of

democratization? And second, the empirical question, what role have they played at specific

places in specific times? Finally, what does the empirical evidence teach us about the norma-

tive question? My paper is meant to contribute to the meta-theory behind these questions. I

want to investigate if the term „role“ is useful at all to construct analytic frameworks that al-

low us to study empirical evidence comparatively.

The concept of role has a curious theoretical standing. One finds a great number of publica-

tions on constitutional courts which explicitly refer to their „role“ in the title or the main

text.7 Few, if any, however, take the term seriously. There is no discussion about what a „role“

means and how the use of the term relates to the theoretical literature on the topic. On a clos-

er reading, it becomes obvious that the meaning of the term is fuzzy and cannot be used as a

7. To name just a few: Cappelletti, 1988; Holländer, 1997; Epstein et al., 2001; Malová, 2002; Widner, 2001,many more in the German literature.

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tertium comparationis that is needed in comparative research. On the other hand, many stud-

ies use the concept of role implicitly, i.e. by semantically assigning a status to the constitutio-

nal court that could be described as a „role“.8 For example, in Nicos Alivizatos seminal article

on „Judges as Veto-Players“ (Alivizatos, 1995), he contrasts the „traditional role as guardians

of legality“ with the fact that „in practice, they are actually seen by an increasing number of

observers as veto players“.9 When András Sájo writes about the Hungarian Constitutional

Court‘s practice of „Educating the Executive“ (Sajó, 2000), he refers to what he, in retro-

spect, considers the contribution of the court to Hungarian legal development. On a second

level, he describes the Hungarian constitutional justices‘ self-perception as „educators“ of the

other political actors. Finally, Alec Stone(-Sweet)‘s well-known proposition that Constitutio-

nal Courts could be seen as a „Third Chamber“ (Stone, 1992) does not refer to the official job

of the courts, but a function within a political system that, in more colloquial terms, can be

called a „role“. In sum, we see a conceptual mess where the concepts of „role“ and „func-

tion“, and empirical and normative aspects are somehow all mixed up. Are these enough rea-

sons to discard the concepts as analytical tools?

I argue that we should not react to the seductive force of the colloquial use of the term „role“

by abandoning it. Instead, we should refine our analytical toolset and take into account the

history of the concept in social science. Then we can evaluate what can be used for a theory

of an institutional role and, more specifically, an empirical theory of the role of a constitutio-

nal court. This will be the task of the next section. In the last section, I want to use this ana-

lytic approach to investigate two empirical cases, the German Constitutional Court and the

Hungarian Constitutional Court.10

II.

The term „role“ has its root in mainly in sociology and social psychology. The details of the

conceptual genealogy and numerous varieties are not relevant for our analysis.11 I will con-

centrate on the main elements of role theory in order to assess whether they make sense in

comparative research on constitutional courts.

One central characteristic of sociological theory of roles is that it has been developed for indi-

8. Of course, this is my own interpretation. It might well be that the authors of these studies would not classifywhat they write about as „roles“.

9. This would be the place to start differentiating „role“ from „function“, but I‘ll return to this later.

10. A detailed analyses of these cases can be found in Boulanger, 2013.

11. See for a review on the English literature Biddle, 1986.

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vidual actors, not for institutions. For example, Parsons

focused on the characteristic behaviors of persons who occupy social positions within astable social system. "Roles" are conceived as the shared, normative expectations thatprescribe and explain these behaviors. Actors in the social system have presumablybeen taught these norms and may be counted upon to conform to norms for their ownconduct and to sanction others for conformity to norms applying to the latter. (Biddle,1986:70)

For Dahrendorf (Dahrendorf, 2006), roles referred to „bundle of expectations“ that frame so-

cial action of an individual, often conflicting with each other. The individual‘s identity and

his or her social behavior results from the intersection of his or her social roles. Those roles

are shaped by formal norms and informal expectations. The behavior of individual is shaped

by the roles formal or informal definition because the individual is sanctioned by others when

he or she does not conform to the role. However, behavior might be also be impacted by role

conflict.

It is obvious that a constitutional court is not an individual actor, and thus, that the existing

theory cannot be applied as is.12 A constitutional court always consists of several judges with

no or little internal hierarchy.13 The decisions are results of a compromise and/or a vote, and

usually, with the exception of dissents or concurring opinions, it is difficult or even impossi-

ble to discern the influence of individual judges. Even if one could determine the individual

position of each judge, there would be no theoretical way of connecting individual and insti-

tutional aspects of the judges‘ or the court‘s „role“. They remain distinct and can only be

studied separately.

Because of this fundamental difference, an institutional theory of roles, or more concretely, a

theory of the role of constitutional courts cannot be simply derived from sociological role

theory. Instead, we can take a set of concepts from there and test their usefulness against the

empirical knowledge on institutions. Also, because of the different ways the term „role“ is be-

ing used, it seems fruitless to try and nail down the concept with a precise definition. Instead,

institutional role theory is best understood as an analytic framework or a research program, a

tool that directs the focus of researchers to phenomena that are considered important within

the key assumptions of this framework. In what follows, I want to sketch the outlines of this

12. It would already be problematic to apply role theory to single-actor institutions such as the presidency, giv-en that individual action in this case is mediated by an institutional context including political advisers, pub-lic relations staff etc.

13. Court presidents cannot tell the other judges how to vote and usually have only indirect ways to influenceoutcomes.

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approach and the assumptions and analytical concepts that could be used to comparatively

collect (qualitatitve and quantitative) data.

On the most fundamental level, institutional role theory describes the relationship between

behavior, expectations, and legitimacy.14 One assumption taken from sociological role theory

is that the empirical legitimacy of an institution is related to the degree to which expectations

and behavior overlap. I think it is hardly controversial to assume that an institution that per-

manently oversteps the boundary of its (ascribed) role, i.e. the expectations that are directed

towards it, will lose its legitimacy or not gain legitimacy in the first place.

The second assumption is that expectations, just as preferences, have to be empirically re-

searched and cannot be assumed.15 This leads us to study processes that form preferences and

expectations, involving analytical concepts like „socialization“, „Identity“, „discourses“ or

„narratives“. What role theory can contribute here is the notion of „scripts“ and „role con-

flict“. As the theatrical metaphor suggests, scripts are narratives that define roles. They can be

reconstructed16 from analyzing norms, public discourses, political theory, public opinion re-

search etc. These scripts are assumed to influence the role-perception („identity“) of the indi-

vidual actors and of the institution itself by ways that are not determined by the theory, but

which instead have to be subject of empirical research. What is comparable, though, are the

content of the scripts and the way they define the roles.

The third assumption is that there are several levels on which the „role“ of an institution can

be studied.

The first level is the self-presentation of the institution and of its actors. There is, in my view,

little promise in the attempt to analyze „what the judges really think“, in the sense of unveil-

ing the true (ideological) motives of the justices.17 This might work in settings where there is

almost no communication between the judges and the decisions are an outcome of simple

voting. In most other cases, the process in which a decision is being produced, and the envi-

14. With behavior, I don‘t mean simply action that changes „reality“ in a physical sense (or doesn‘t change it,as in the case of inaction). It includes what system theorists call symbolic „communications“. Thus, judge-ments, legal commentaries, or speeches count as behavior. This is old news for anyone in the field of com-munication studies, cultural studies, or linguistics. In law, Robert Cover comes to mind, who wrote aboutthe „Violence of the Word“ (Cover, 1992)

15. This is where social scientist working in the sociological/historical institutionalist tradition depart from ra-tional choice approaches.

16. The term „reconstruction“ reminds us that these „scripts“ are in most cases, just as is the case with the pref-erences not „just there“ – they are reconstructed interpretatively by the researcher by looking at the empiri-cal data, and by determining what she thinks is part of the script.

17. I am thinking here of the U.S. american theoretical school of „Attitudinalism“ or Ran Hirschls work.

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ronment in which the decision is born is almost as, or even more important, than the ideologi-

cal preferences of the justices.18 In any case, as sociologists of law have pointed out, the mo-

ment „law“ matters most is not when judges „find“ the decision, but at the moment they have

to „present“ it.19 We should take the „behavior“ of the court through its judgements, utter-

ances, (non-)actions seriously, not as an expression of the „true“ motives, but as presentation,

i.e. as active or involuntary reproduction of its role. This presentation can be contrasted with

the scripts, and with the expectations of various origin that can be empirically documented.

This also leads us to take juridical method seriously, which is obviously hard for some social

scientists. As Grimm (Grimm, 1982) has argued, the choice of legal methods is neither a

purely technical question nor a simple smokescreen for pursuing whatever end justices have

in mind. The methods that lawyers use are part of the struggle over the monopoly of interpre-

tation in the legal and constitutional field (Bourdieu, 1987; Vorländer, 2006b).

These expectations concern the second level of empirical observation, that of role ascription.

By this, I mean the empirically demonstrable narrative about what various audiences of the

institution expect from this institution, in other words, what role these audiences ascribe to

the institution. I take the „audience“ metaphor from Lawrence Baum, who has written on

„Judges and their audiences“ (Baum, 2006). Baum counts as audiences court colleagues, the

general public, the other branches of government, social groups, the professional groups of

lawyers and judges, policy groups, and the news media. What counts as an „audience“ for

comparative purposes is open for discussion, but the important point for institutional role the-

ory is the following: even though each „audience“ is internally heterogeneous, there might be

some majority view on the proper role of the institution, at least how it is perceived at the in-

stitution itself.

Finally, the third level on which „role“ can be studied is the question of the institution‘s func-

tion. Function is a very contested term, because it is widely associated with Parsonian struc-

tural functionalism, a theory that dominated U.S.american sociology in the 1960s and early

1970s but was subsequently almost completely discarded. One major objection against Par-

son‘s use of function was that it confounded fact with causality – i.e., that the function that a

social mechanism or phenomena fulfilled was the reason for its existence. But this well-

founded objection does not render the concept of „function“ superfluous or detrimental.20 The

18. See, for example, the work of Uwe Kranenpohl on the Germn Constitutional Court (Kranenpohl, 2010)

19. In German, this can be nicely put as the contrast between „Herstellung“ (production) and „Darstellung“(presentation). See Lautmann, 1972;

20. As we have seen, it is so inscribed in the colloquial use of „role“ that we cannot ignore in any case, unless

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function of an institution can be thought of as its capacity to solve a particular problem or to

respond to a particular need. The critique of functionalism cautions us not to reify the func-

tion! The point I want to make here is that a „function“ is also an ascription (albeit an empiri-

cal, not a normative). It does not, as in systems theory, have an ontological status. Its useful-

ness for comparative research is merely heuristic, and dependent on what the researcher

wants to find out.21

Let‘s take the example of the „veto player“. Obviously, this is not a „role“ that comes from a

„script“. Constitutional courts were not conceived as veto-players as, for example, the Ameri-

can President or the German upper chamber, the Bundesrat. Those powers can put their veto

on any policy they wish for purely „political“ reasons.22 Constitutional courts, however, are

designed as „legal“ actors that can act only on the basis of norms. Their capacity to intervene

is usually strictly limited by rules of standing and, except in rare cases, they cannot initiate

their own proceedings. However, an outside observer can come to the conclusion that a par-

ticular court, in a particular political system, has essentially become the „functional equiva-

lent“ of a veto player in the absence of other players. For example, this would be a valid

analysis of the Hungarian constitutional court between 1990 and 2011, which acted in a polit-

ical system with a unicameral parliament. The function that the court then plays is to inter-

vene into the political process and „veto“ certain outcomes.23

This leads us to another methodological aspect of institutional role theory that concerns the

scope and level of institutional roles. I would differentiate two levels: the macro-level and the

micro-level. Whether a court acts as in a certain role can only be determined in retrospect

over a specific period of time and evaluating a set of key decisions. It also requires, I think, a

fairly similar set of cases to be analytically useful. For example, democracy probably means

very differnt things when we study the Constitutional Court of Germany versus the Constitu-

tional Court of Bosnia-Hercegovina, and the role of the court in advancing or guarding

we follow system theory in constructing a whole new language. Language use tells us something about real-ity, and we should profit from the implicit experience that is contained in subtext and connotations ofwords.

21. Since I first wrote this paper, I have come to take a somewhat more positive view toward systems theory,influenced by work by Michael Hein (See, for example Hein/ Ewert, 2014).

22. In the case of the Bundesrat, the story is more complicated than that, since there are only specific policy is-sues in which the Bundesrat can intervene.

23. As Roland Lhotta (Lhotta, 2003) has reminded us, „veto-playing“ is not the only and often even not themost important activity of Constitutional Courts. It is therefore important that Political Scientists do notreduce their focus on the veto-player theory when studying these institutions.

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democracy will obviously very different.

That is why I prefer to look for roles on the „micro“-level, i.e. those who are more abstracted

from the particular case study and, at the same time, closer to the „legal“ quality of the insti-

tution. Methodologically, we have two choices. We can either compile data and distill roles

from the data inductively. Or, and this is how I will proceed, we take certain clues from (so-

cio-) legal writing and from our empirical experience with the cases and postulate roles that

„speak“ to the data in some way, and provides us with a useful comparative perspective.

I therefore propose to look at the following roles that a constitutional court might play by de-

ciding cases that come before it: One is the famous „Guardian of the constitution“, meant in

the Kelsenian (Kelsen, 1931), not the Schmittian (Schmitt, 1985) sense. In this role, the court

asserts the supremacy of the constitutional Grundnorm vis-à-vis ordinary legislation or exec-

utive behavior that contradicts the constitution. The second is the role of the Dispute Resolver

which primary task is the peaceful settlement or neutralization of social or political conflicts.

The theoretical reference for this type of role would be Martin Shapiro (Shapiro, 1981), who

has argued that courts are not defined by the activity of applying norms to facts. Instead, the

universal (and therefore: comparative) characteristic of court is triadic dispute resolution, i.e.

the phenomenon that conflicts that arise between two parties are brought before a neutral

third. Law obviously plays a role, but it is a tool to decide conflicts, not an end in itself. The

third role is what can unwieldily be referred to as a „Creator of the normative order“. In the

my research context, the post-communist democratization, Bruce Ackerman has described a

phenonmenon that he called „Judges as Founders“ (Ackerman, 1992:99). In opposition to the

„guardian“, which applies pre-existing law for the sake of the normative order itself, and the

dispute resolver, who uses law to decide conflicts, the „founder“ creates law by inventing

new rules. This is not as outrageous as it might sound. Montesquieu‘s mataphor of the judge

as the „mouthpiece of the law“ was a reaction to judicial arbitrariness in absolutist France and

never a useful image to describe what judges are or should be doing. Since the law can never

provide a clear rule for all the cases that come before a court, judges have engaged in creating

law (precedents or „Richterrecht“) in any legal system, formalist or not. In fact, outside of the

mind of a doctrinal legal scholar, „law“ doesn‘t exist until the moment a court confirms the

applicability of a legal rule to a set of facts, Until this moment, the validity of the rule is con-

tested, and the second after the pronouncement, the applicability of the rule to a different set

of facts is contested again until a new decision. In sum, judges are creating law all the time,

but the obviousness of this and the degree to which they create new rules differs. When

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judges act as „founders“, they go beyond what is usually accepted as judge-made law to

shape the law in ways that have very little to do with a formalist reading of the text of the

constitution.

The roles presented above – guardian, dispute resolver, and founder – are, of course, ideal

types in the Weberian sense (Ringer, 1997). No court will ever play just one role. Usually, all

of these roles – or modes of judging – are present to a different degree. But at the same time,

the roles are antagonistic and – here we can use the concept of role conflict – draw the judges

into different directions. The more the judge tries to apply the law in a strict formalist sense,

the less she will be able to handle the conflicts that are behind a case. The more courts act as

social engineers („founders“), the less they can draw from the sources of legitimacy that is

available to the „guardian“.

Which leads us to the question of the different types of legitimation that are connected with

the three roles. As stated above, legitimacy, in this approach, is tied to the kind of expecta-

tions that constitute the roles. Some of them come from what role theory calls the „scripts“,

others from motivations such as simple self-interest. The guardian draws its legitimacy from

two sources: one is the at least rhetorical observance of established methods within jurispru-

dence. But the „actual“, sociological basis of this type of judging is what Weber has called

the „calculability“ of law, i.e. the fact that there a certain degree of security in predicting how

the court will decide.24 Modern sociology of law knows that the legal certainty is not

produced by the observance of juristic methodology in any particular form (such as common

law versus civil law). It is the product of institutional practice – the incessant crunching of

cases by the judicial system, involving internal struggles over interpretative hegemony (Bour-

dieu, 1987). For constitutional courts, this matters in a very different way, since it decides

cases that are extraordinary, usually highly disputed and where there little or no institutional

practice exists.25 So the legitimacy connected with legal certainty will not be available in

most cases, especially in what Dworkin called the „Hard Cases“ (Dworkin, 1975). Instead,

this phenomenon could be called „legitimacy by uncertainty“, a resource available to the

„dispute resolver“. But this does not mean that legal certainty is unavailable at the level of

24. To Weber, this calculability was one basis of the capitalist economic system, and he thought that it wasconnected with „legal science“ in its prototypical German variant, where judges believed they appliednorms to facts in a purely „logical“ way. On a closer reading, it becomes apparent that Weber didn‘t thinkthat judges functioned as legal apparatuses. His observation was that this is what the dominant „legal think-ing“ implied. He did not offer any sociological explanation how legal certainty was acutally brought about.

25. If rules of standing require the full exhaustion of the lower courts, the institutional practice is part of theknowledge presented to the Constitutional Court during the proceedings.

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constitutional courts. If we say that juridical methodology cannot provide definitive answers

for all questions, it does not mean it cannot provide clear answers for any question (as, for

example, the „legal indeterminacy“ thesis implies, see Solum, 1996). There are formal rules

where it is possible to bring about a high degree of consensus concerning its meaning and ap-

plication to „facts“. These rules is what Kelsen had in mind when he formulated his theory of

the „Guardian of the constitution“. But, as he clearly saw, there are many rules where such

consensus is very hard or even impossible to find, such as broad and vague human rights pro-

visions and state aims such as the protection of Human Dignity. Such values cannot be

„guarded“ in any meaningful way, instead, they have to be interpreted, and given meaning, in

other words, norms have to be created that spring from such semantically „empty positions“

(Luhmann, 1995:309). That is why Kelsen was strictly against the inclusion of vague consti-

tutional rights and principles. In any case, his advice was not followed by constitutions-mak-

ers around the world.

As to the dispute resolver, its legitimacy is in some way self-generating by the nature of

dyadic conflict (Shapiro, 1981). How can a conflict between different political interests be

decided? Either by force – this is ghost of civil war. Or, by majority – this would be, very

simplistically, the prototype of the Westminster model, requiring a very strong political cul-

ture that harnesses the violation of the rights of the minority.26 Or third, an institutional device

such as the constitutional court, which allows to transform almost all political conflicts into a

legal question („does the constitution allow XY?“). Alec Stone Sweet (Stone Sweet, 2000)

has taken up Shapiro‘s cues and applied it to constitutional courts for his theory of constitu-

tionalization: the availability of a „neutral third“ who decides political conflicts can initiate a

self-enhancing effect where more and more decision-making power is transferred from the

parliament to the court. „Neutrality“ is the key point here. The legitimacy of a dispute re-

solver is highly contingent upon the capacity of the umpire to appear neutral – in other words,

ascribed neutrality is one of the most important basis of the dispute resolver‘s role. As soon

the umpire institution fails to live up to this expectation, its legitimacy vanishes.

Finally, the „founder‘s“ sources of legitimacy are the most problematic. Neither legal certain-

ty nor conflict management comes to her rescue, she has to generate its legitimacy from „ex-

ternal“ sources. I argue that the „founder‘s“ legitimacy comes from the connection of her

judgements with social aspirations. This does not mean that activist courts are (or can be)

26. Of course, this does not longer correspond to current British politics, with the Human rights act, Devolu-tion, and the fact that British courts have always had some form of judicial review.

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„more democratic than parliaments“, as Kim Scheppele (Scheppele, 2005) has argued, or that

constitutional courts are the epitomy of the „open society of constitutional interpreters“, as

Häberle has hoped (Häberle, 1975).27 The social aspirations might well come from a small

part of society to which the judges feel closer and from they expect sufficient support for the

outcome.28

There are other ways that the three roles could be discussed which could be part of an extend-

ed version of this paper. For example, one could think of the different juridical methodologies

that might have „elective affinity“ (Weber) to each type. For example, it would be worthwile

to analyze the relationship between the phenomenon of „balancing“ with the role of the dis-

pute resolver29 or between the use of „value jurisprudence“ and jurisprudential founding.

III.

I hope that with the previous paragraphs, I was able to outline the theoretical potential of in-

stitutional role theory. However, the real use of a theoretical framework in comparative poli-

tics is demonstrated only when it is applied to real cases. In the last part of this paper, I want

to do this by trying to solve the following puzzle: Why has the German Constitutional Court

been consistently strong and has never been the object of successful attacks despite its obvi-

ous judicial activism, whereas the equally or even more activist Hungarian Constitutional

Court saw its competences radically limited with the new constitution that was adopted this

year? Of course, institutional role theory does not provide the definitive answer to this ques-

tion. It merely highlights areas of empirical research that might contribute to a comprehen-

sive explanation, just as any other explanatory strategy.

Let me sum up quickly what I am be trying to explain. The West German Federal Constitutio-

nal Court (Bundesverfassungsgericht, BVerfG) started its work in 1952, three years after the

new democratic West German state was founded on the rubbles of defeated Nazi Germany. It

quickly became a central player in the political system of postwar Germany (Kommers,

2006). There is almost no major piece of legislation that is not appealed to the court, and the

anticipation of this influences parliamentary work to a high degree. The court has not shied

away from striking down pet projects from a ruling majorities, although it has shown restraint

when the annulment would have had drastic or unforeseeable consequences, such as in for-

27. See my critique of Scheppele in Boulanger, 2006. For Häberle, see Blankenburg/ Treiber, 1982.

28. Maybe Turkey would be an empirical case in point?

29. Stone Sweet/ Mathews, 2008.

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eign policy. At least since the mid-1960s, the court has undisputed interpretative hegemony

(Vorländer, 2006a). Even though there have been occasional protests against court judge-

ments that upset parts of the population, such as the banning of crosses from Bavarian class

rooms in the 1990s, the popularity of the court has been consistently high (Vorländer/

Brodocz, 2006;Lembcke, 2006b). After a disgruntled justice minister in the early 1950s had

failed in trying to limit the court‘s status and competences (Lembcke, 2006a), there had been

no more political attempts to weaken the court. In the doctrinal literature, there is the occasio-

nal heretic who deplores the judicial activism of the Court, but outside of the radical fringe

parties, there is no fundamental critique of its strong position.30 Instead, as Rudolf Smend ex-

pressed in 1962, „for all intents and purposes, the constitution nowadays means what the con-

stitutional court says it means, and the doctrinal literature comments on it in such a way“.31

The Hungarian Constitutional Court (Magyar Köztársaság Alkotmánybírósága, MKAB) was

the first functioning institution of the new democratic Hungarian state that resulted from the

1989 roundtable negotiations between the last Communist government and the opposition. It

began deciding cases even before the first democratic parliament was elected and became, in

even less time than its German counterpart, an incredibly strong force in Hungarian politics.

While the German court had mostly decided in favor of the government in its first decade

(Brodocz, 2009:142-170), the Hungarian Court confronted parliament and executive head-on.

Writing in 1996, Kim Lane Scheppele reports that:

In the 6 1/2 years of its operation, the Constitutional Court has published about 1500decisions on every imaginable constitutional question [Since 1990], the Court hasstruck down roughly one law in three that the Parliament has passed, affecting nearlyevery aspect of the reconstitution of Hungary.32

Under the leadership of its president László Sólyom, who later was to be come the President

of Hungary, the court abolished, single-handedly, the death penalty on purely dogmatic

grounds, it put limits on the way property could be privatized and on how former owner of

property would be compensated, intervened into the attempt to punish perpetrators of human

rights violations of the Communist era, or prevented the government from implementing a

30. Except, of course, when its decisions block pet projects of the coalition of the day. This critique is quicklyforgotten once the parties are voted out of power and, as opposition, get some clout over government policythrough appealing to the Constitutionsl Court.

31. „Das Grundgesetz gilt nunmehr praktisch so, wie das Bundesverfassungsgericht es auslegt, und die Liter-atur kommentiert es in diesem Sinne“ (Smend, 1962).

32. „Kim Lane Scheppele, 'Imagined Europe', paper presented at the Annual Meeting of the Law and SocietyAssociation, July 1996, Strathclyde University, Glasgow, Scotland.

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welfare reform that lacked a transitional period (Schwartz, 2000; Procházka, 2002).

The other branches did not react immediately – except from the extreme right, there was no

open attack against the court. But there was a response: first, the parliament delayed appoint-

ments to the court so that at the end of 1998, when the judges of the „Solyom era“ retired,

there was little personal continuity (Halmai, 2002). Second, the new judges that were elected

were conspiciously less activist than the previous ones. For example, the new court president,

János Németh, was an avowed legal positivist (Scheppele, 1999). Even though there was

some „Return to activism“ in the mid- 2000s (Halmai, 2007:12-18), the court increasingly

lost its influence on Hungarian politics. Amidst growing polarization of the political land-

scape, the court was marginalized in the struggle between the two political camps: the re-

formed socialist party with its small liberal-democratic coalition partner, and the national-

conservative FIDESZ-party, which collaborated with smaller parties of the right. But the last

months have seen a development that would be unthinkable in Germany: After the landslide

victory of FIDESZ in the 2010 elections, which resulted in a 2/3 majority in parliament, the

government under Victor Orbán has launched what can be described as an unprecedented at-

tack on the Constitutional Court: first of all, it has changed the judicial election rules to get

rid of the participation of the opposition and has increased the number of judges to 15 in or-

der to fill it with its own appointees.33 Then, following an unfavorable judgement against

retroactively applied punitive taxes, the ruling majority has limited the ability of the court to

review legislation that has budgetary effects (for details, see Kovács/ Tóth, 2011 and Lem-

bcke/ Boulanger, 2012). Most controversially, it has enacted a new constitution, which de-

clares discontinuity with the former constitution, providing a legal justification for

abandoning the case law of the last twenty years.34

Roughly speaking, we have to questions: first, what explains, comparatively, the rise of the

German and the Hungarian Constitutional courts at the beginning of their activity? Second,

why was the German court able to keep its powerful position, whereas the Hungarian court

currently suffers from a severe setback? There is a host of factors on the national and interna-

tional level that need to be taken into account when trying to shed light on these develop-

ments. Institutional role theory certainly doesn‘t tell us the answer in advance. It only tells us

where to look.

33. One of the new justice, Béla Pokol, is a declared enemy of the jurisprudence of the Sólyom era (see, forexample, Pokol, 2002).

34. It remains to be seen if that will actually happen, thus far, there are no signs of a radical departure.

- 13 -

To complicate things, we have very different historical backgrounds: On the one hand, Ger-

many is lead to democracy by the occupying powers after a complete breakdown and loss of

sovereignty that followed a catastrophic war and twelve years of fascism. When the constitu-

tional justices first took office, European institutions were in their infancy35 and had little im-

pact on constitutionalism. The Hungarian situation was very different: The regime change

was the result of the negotiations between two elite groups: the technocratic reformers within

the Socialist Party and intellectuals of the democratic opposition. There was no radical break

with the former regime, which had experienced a period of increased internal „legalization“

(Zsidai, 1996) even before the regime change. Whereas Germany struggled to regain interna-

tional recognition and to shed of its status as a pariah state, the political elite in the new de-

mocratic Hungary operated with the prospect of joining the European institutions in mind,

which limited their political options. Both states were monitored from outside, but this meant

different things for the constitutional courts. There was no real model for the BVerfG except

the Austrian constitutional court, which however, did not have much political influence. The

Allied powers did not care much whether the Germans had strong or weak court.36 The BVer-

fG created its own role from the legacy of the legal discourse from the Weimar republic, and

its audiences were only on the national level. The MKAB, in contrast, or, more specifically,

Sólyom, operated from the beginning with the view to how the jurisprudence of the court

would be received outside of the country.37 On the other hand, even though it is hard to prove

empirically, there is much to Radoslav Procházka‘s (Procházka, 2002) thesis that the MKAB

was an effective „public relations“ instrument to prove Hungary‘s adherence to the rule of

law during the accession negotiations. Current events could be seen as a confirmation of this

thesis: since EU monitoring of constitutional matters is very difficult in after a nation has be-

come a Member State, there is, from the perspective of power-hungry elites, no more need for

a institutions that signals a high degree of rule of law to outside observers. But of course, the

story is more complicated than that.

Institutional rules are important factors in explaining the different trajectories. The MKAB‘s

actio popularis procedure was basically a petition system which left the judges with broad

35. The treaty on the European Coal and Steel Community was signed in April 1951.

36. Therefore, Shapiro‘s observation that „three of the four large nations that moved toward judicial review af-ter the war – Germany, Italy, and Japan – did so more or less at the point of a gun“ ist not accurate in thecase of Germany (Shapiro, 2002:196).

37. This is party explained by Sólyom‘s international connections – he was a research fellow in Germany inthe 1980s, were he also studied the jurisprudence of the BVerfG.

- 14 -

discretion as to what they wanted to decide. Had the roundtable negotiations instead imple-

mented a German-type constitutional complaint procedure, the court might have decided a

completely different set of questions, or might have gotten involved in a struggle with the or-

dinary judiciary,38 just as it has happened in the Czech Republic and, to a lesser degree, in

Poland. This is what can be observed in the German case: in the first decade of its work, the

Court aggressively confronted the other high courts more than parliament or government.39

The federal structure of Germany also helps in establishing the German court‘s role as an um-

pire in the political disputes which arise between the central state and the federal units. This

resource not available to the Hungarian court.40

Certainly, the party system goes a long way in explaining why the Hungarian court is embat-

tled, while the German is not. For example, András Sajó has argued that during the activist

era of the „Sólyom court“, the Hungarian political elite was too divided to retaliate against

the court. The court only ever mobilized a part of the elite, and sometimes a part of the popu-

lation, against its decisions (Sajó, 2000:226). This insight can also be used in the German

case: There was never an ideologically homogeneous majority that would have been able or

willing to attack the court. However, in 2010, when the FIDESZ-KDNP party grouping

achieved the absolute majority necessary for constitutional amendments, that opportunity fi-

nally came. But the mere fact of the political majority does not explain why the opportunity

was used. Even though EU monitoring isn‘t as effective as it was in the pre-accession era, the

changes meant significant reputational damage that can be exploited by the domestic

opposition.41

As argued in the preceding sections, in order to understand what happened in Germany and in

Hungary, we would have to look at the self-presentation of the courts and the expectations of

the court‘s various audiences.

Role theory would expect a high impact of judicial personalities on the self-presentation of

the court. And certainly, most observers would agree that the first Hungarian court‘s output

38. The MKAB did try to anull a Supreme Court decision. This was clearly against the letter of the law, and theSupreme Court proved powerful enough to fend off the challenge.

39. For the BVerfG‘s struggle against the Bundesgerichtshof, see Henne, 2005.

40. The court has jurisdiction in the affairs of local self-government, but this is not comparable to the powerfulimpact of the German Länder. The importance of federalism for the power of the U.S. Supreme Court isstressed by Shapiro, 2002.

41. For example, the opinion of the Venice Commission on the new constitution (European Commission forDemocracy Through Law (Venice Commission), 2011) stated that „The limitation of powers of the Consti-tutional Court [...] raised concern in the light of their potential impact on the functioning of democracy.“

- 15 -

and public appearance was to a very large degree a product of the ambitions and the vision of

its first president. Had Sólyom not been elected, and Géza Kilényi, the candidate of the re-

form communists, been given the post, we would have seen a very different court.42 In Ger-

many, this also holds true. It is impossible to understand the spectacular doctrinal develop-

ments of the early court without knowing who participated in developing this jurisprudence.

In particular, the self-presentation of the early court was the product of an internal discussion

in which justice Leibholz was able to convince his colleagues to present the court‘s activity

as one of „guarding the constitution“ (Lembcke, 2007:105-163), even though clearly, by con-

struing the constitution, the court was constructing it.

Let‘s turn to the audiences of the court. What is similar in both countries is a relatively high

distrust of the political process and, thus, a relatively high degree of „trust“ in the court and

its judgements.43 In Germany, the „moral void“ that followed the breakdown of the murder-

ous Nazi Regime could be partially filled by the Court, which contained a higher percentage

of émigrés and opponents of the previous regime than any other institution. Formalism, the

intellectual basis of the „Guardian“, was discredited as having been part of a spirit of sub-

servience that made the Nazi regime possible.44 Instead, the Court collaborated in „founding“

the new German democracy by inventing a system of Basic Rights that went far beyond the

text. Sólyom court became very popular because it was perceived as the last resort against

unpopular government policy. In contrast to the BVerfG, the MKAB could not transform pop-

ularity into lasting support. A case in point is the television-case of 1961, in which the BVer-

fG invalidated, in 1961, plans of the Adenauer government to create a central and govern-

ment-influenced television station. Georg Vanberg (Vanberg, 2004) has argued that it was

Adenauer‘s fear of a negative reaction by the electorate that kept him from retaliating against

the court. Even if one doesn‘t follow Vanberg‘s monocausal explanation, the difference to the

Orbán government is clear: Orbán obviously did not expect negative reactions from his voters

when he limited the court‘s jurisdiction.

In sum: whereas the BVerfG was able to meet the expectations of its audiences by adhering to

established „scripts“ such as the narrative of the „guardian of the constitution“ (see Lembcke,

42. This is disputed by Procházka, 2002:263, who, based on a very structural reading of the situation CEEcourts were in, claims that the Courts' jurisprudence would have been very similar even with differentjudges.

43. Vorländer/ Brodocz, 2006; Husz, 1998:821-829.

44. Since then, many studies have shown that this is an incorrect assumption. Quite the contrary: the Naziregime had no respect at all for formalism, just its own version of value jurisprudence, one that rejects anyneed of consistency.

- 16 -

2007), the Hungarian Court has not been able for sustain its role as the „guardian of the rule

of law revolution“ which it had claimed in the retroactive punishment case (11/1992). One

reason could be that Sólyom was, in some sense, „too honest“ and, on the other hand, overes-

timated the public‘s willingness to accept open judicial activism. He was too honest because

he was openly admitting, early on, that the court was not simply a „guardian“. In judge-

ments45 and public statements, he made clear that the court was not just the mouthpiece of the

incomplete and sometimes contradictive constitutional text. That he overestimated the will-

ingness of his Hungarian audiences to accept the role as founder is best illustrated with what

can be called his most import „public relations blunder“: in a parallel opinion of the Death

Penalty case (23/1990), he explained what he saw as the task of the court: to unearth the „in-

visible constitution“: a set a principles which stood on top of the written norms of a constitu-

tion. Sólyom did not refer to natural law here. His aim was to find a metaphor for the con-

struction of a rigid system of constitutional interpretation, i.e. constitutional law doctrine, as

he knew it, for example, from the German case. Some of it would be extrapolation from con-

stitutional norms – such as the guarantee of the essential content of fundamental rights (Art 8

II of the constitution). Other principles, such as the principle of proportionality, was inferred

from the principle of the rule of law (Art. 2 I) and taken over from standard practice in Ger-

man or European constitutionalism. In the Death Penalty case, Sólyom specifically tried to

justify the choice of the court to construct a hierarchy of rights that was not explicitly con-

tained in the constitution. Compared to the practice of the German Constitutional Court, noth-

ing of this seems extraordinary. Seen from a role theory perspective, Sólyoms mistake was to

drop the traditional role of courts and to acknowledge the norm-creating function of courts in

a way that was easily misunderstood by the audiences of the court. This explains why this

statement, which (originating from a concurring opinion) had no legal force and was never

taken up again by Sólyom and the court, was debated in the press for a long time. It promi-

nently featured in the literature critical of the Sólyom court (for example, Pokol, 1992; Törő,

1992).

This is not to say that a different formulation, similar to the German court‘s 1960 invocation

of Savigny‘s canon of accepted methods of legal interpretation,46 would have „saved“ the

court from the backlash that it experienced after 1998. Rather, the „invisible constitution“ is a

45. Meaning: in the judgements that bear visible traces of his influence – of course, it is hard to tell which partwas written by him or his advisers.

46. BVerfGE 11,126, 130.

- 17 -

symbol for Sólyom‘s approach of wanting too much too fast , which finally prevented the

court to secure its position. The German court waited 10 years before dealing a major blow to

the executive with the Television case. In contrast, the Sólyom court almost immediately

joined the fray. Compare this to the 150 years in which the U.S. Supreme Court amassed po-

litical capital before it dared to confront parliament in a really substantial way (Shapiro,

2002). For some time, the court had an ally in the international (and, in particular, German)

audience, which expected it to behave just like the Bundesverfassungsgericht. This was no

longer the case after its EU-accession.47 And as it seems, the domestic audiences were no

longer ready to support the court‘s charismatic role of a founder after European constitution-

alism had lost its attraction.

Today, we see a strongly polarized Hungarian society which deals with an economic and so-

cial crisis, with substantial parts of the population supporting nationalistic and or even ex-

tremist positions. The court‘s „rule of law“ revolution has been replaced by Orbáns „revolu-

tion at the polling booth“. At the moment, Orbáns influence seems to be weakening, but not

in favour of the fragemented and hapless opposition. The radical right is trying to transform

itself into a party that appeals to former socialist and FIDESZ voters. This does not bode well

for the Rule of Law in Hungary. It remains to be seen what role the court will play in the

years to come. And whether institutional role theory will be able to help explain the

developments.

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