How to Measure the Strength of Judicial Decisions: A Methodological Framework

Abstract

Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-à-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.

Subnational constitutional courts and judicialization in Germany

“…One problem is that many scholars apply a binary logic because they take into account only whether a ruling has nullified a law (or parts thereof). Such approaches fail to give the contents of rulings their due credit (Pócza et al 2017). For example, a court might nullify a law just due to formal reasons that can easily be remedied by the legislature.…”

“…In this case, the law passes as constitutional even though the ruling has relevant implications for the legislature. I therefore needed a more nuanced "textual interpretation" of rulings or a "more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions" (Pócza et al 2017(Pócza et al : 1557 and in consequence determining the varying degrees of judicialization in the German states. Pócza et al (2017) have developed one such index that I have modified slightly and which helps to map out the strength of decisions made by constitutional courts (Pócza et al 2017; Pócza and Dobos 2019: 11-21; Reutter 2019; see "Appendix 1").…”

“…Furthermore, I believe that the strength index used in this paper effectively captures "the varying degree of activity of constitutional courts" (Hönnige 2011: 352). The sophisticated measure not only includes all decisions declaring a law unconstitutional but also "allows for a more nuanced consideration of the strength of the judicial decisions" (Pócza et al 2017(Pócza et al : 1563. The complex reality of constitutional adjudication requires such a methodology.…”

“…The complex reality of constitutional adjudication requires such a methodology. Pócza et al (2017) have shown that the index they developed can help to better map out the effects of judicial decision-making and compare constitutional courts across nations than dichotomous measures that can just separate positive from negative decisions of constitutional courts. This clearly marks a huge step forward in the comparative research on constitutional adjudication.…”

Authoritarian Dimension of Judicial Ideology of the Slovenian Constitutional Court

“…Judicial ideology has been well researched in the United States (Cross & Tiller, 1998), but less so in Europe, particularly in Central and Eastern Europe, where it has often been contended that judges decide cases neutrally. Researchers have only recently attempted to measure judicial ideology at the highest courts in Central and Eastern Europe (Hanretty, 2014;Kantorowicz & Garoupa, 2016;Avbelj, 2019;Avbelj et al, 2018;Szente, 2016;Pócza, Dobos & Gyulai, 2019;Pócza, Dobos & Gyulai, 2017). This article attempts to fill this gap by concentrating on the measurement of the authoritarian dimension of judicial ideology of the Slovenian Constitutional Court.…”