The Deformalization of Legal Culture in Post-Authoritarian Europe: a Weberian perspective

Christian Boulanger, Humboldt-Universität zu Berlin, christian.boulanger@rewi.hu-berlin.de

Paper presented at the conference "Rethinking Legal Culture in Europe - Inter-European Pro-cesses and Changing Global Positions", Centre for Studies in Legal Culture, University ofCopenhagen, 27-28 November 2008. This is a draft, comments are welcome.

1. Introduction: Are courts running amok?

In a recent, broadly publicized polemic, the former German constitutional court judge and

former president of Germany, Roman Herzog, criticized the European Court of Justice of "de-

liberately and systematically" ignoring "fundamental principles of the Western interpretation

of law" (Herzog & Gerken, 2008). According to Herzog, the ECJ disregards and even turns it

into its opposite the will of the legislator, “inventing” legal principles that serve as grounds

for later judgements. In Herzogs view, the court thereby subverts the basis of its legitimacy,

since the court's mission was meant to be an "arbitrator to mediate in the interests of the EU

and those of the Member States", practicing "in an unbiased way and in compliance with the

rules of the judiciary." Ironically, similar charges have been made against the very Bun-

desverfassungsgericht (Federal Constitutional Court) Herzog has presided over from 1987

until 1994.1 But the ECJ and the Bundesverfassungsgericht are not alone in being criticized

of a judicial activism that goes beyond the „letter of the law“ and substitutes decisions of the

democratically legitimized law-makers, be it the parliament itself or the nation-states as the

"masters of the treaties", by its own judicial will. The phenomenon of judicial empowerment

that could be observed in Europe in the second part of the 20th century (Stone Sweet, 2000)

has been accompanied by criticism that echos, in some way or another, Lamberts (Lambert,

1921) famous philippic against a "Gouvernement des Juges": That judges go beyond the in-

terpretation of rules by making or breaking the rules themselves. According to many, howev-

er, within the the liberal theory of democracy they have no legitimacy to do so (Waldron,

2006).

In the following, I am asking how the increasingly self-confident and powerful role of courts

has played out in the process of post-authoritarian legal and political development in the post-

World War II era and during the integration of the new EU member states with a legacy of 40

years of communist law. I argue that some of the problems that arise in the relationship be-

1. Although not necessarily against Herzog's own judicial philosophy. See for a short English language intro-duction into the German debate on judicial activism Haltern, 1996.

tween judge-made law and democratic legitimacy boil down to the old Weberian question of

the competing formal and substantive tendencies in modern law. Herzog's "fundamental prin-

ciples of the Western Interpretation of law" refer, in essence to the traditional liberal-formalist

legal thinking. The ECJ's understanding, and that of many new constitutional courts in Eu-

rope's West and East, to a dynamic interpretation in the interest of substantive values such as

closer integration, or democracy and rule of law, respectively. Rather than feeling bound to

the "letter of the law" and a close "application" of law to facts, they solve cases according to

the facts at hand, in light of principles that they read from the constitutional text.

One major characteristic of post-word war II Europe is the "Rise of the constitutional judicia-

ry", resulting in a previously unknown "juridification of politics" (See, for example,

Cappelletti, 1988; Shapiro, 1996; Tate, 1995). Even though there are many countries that

have resisted this trend (the nordic countries being part of this group, but also Switzerland or

the UK), a general tendency has been to give constitutional courts sweeping powers - at least

on paper - to control the constitutionality of legislation, administration, and of the - now sub-

ordinate - "ordinary" judiciary. This is especially true for countries that have undergone a

post-authoritarian transformation, after a regime change from a non-democratic to a democra-

tic system. There have been several waves of post-authoritarian establishment of constitution-

al courts: First, after the war, courts were set up in Austria (1945), Italy (1948) and Germany

(1949). After the end of dictatorship on the Iberian peninsula in the 1970ies, Spain (1979) and

Portugal (1982) followed suit. Finally, almost all postcommunist states in East Central and

Eastern Europe introduced some form of constitutional review (Brunner, 1993).

Most of the literature, often written by legal scholars, on the rise of the constitutional judicia-

ry praises the development as a remarkable achievement of the global triumph of democracy

and the rule of law (see, for example, Hartwig, 1991; Schwartz, 2000). However, other au-

thors criticize the sweeping powers courts have gained and used in this process as a problem

for democratic development. For example, Wojciech Sadurki (Sadurski, 2005), has been a vo-

cal critic of judicial activism in post-communist states. He points out that the formulation of

many constitutional provisions, in particular constitutional rights, is inherently vague. This

vagueness allows constitutional courts to increase their influence over politics, claiming that

they are the authoritative interpreters of the constitution. There is, however, according to him,

no a priori cause why courts should be the ones to decide the meaning of these constitutional

provisions. In case of doubt, the decision should be left to not to a Dworkinian "Judge Her-

cules" (Dworkin, 1986), but instead the democratically accountable parliament. The role of

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courts is to decide on the procedural aspects of cases that have clear answers in the existing

law. Sadurski's critique echoes the critical assessment of judicial activism that can be found in

American legal writing such as Marc Tushnet's "Taking the Constitution Away from the

Courts" (Tushnet, 1999) or John Ely's classic "Democracy and Distrust" (Ely, 1980). Some

observers even think that activist courts have evolved from Hamilton's and Bickel's "least

dangerous" to the "most dangerous" branch of government, undermining law and democracy

(Martin, 2003).

However, I think, the simple antagonism of democratic versus undemocratic judicial behavior

cannot capture adequately the empirical phenomenon of the increasing involvement of judges

in policy-making. I argue that we have to take into account that there has been a shift in legal

thinking over time that has changed the nature of the law and the relationship between the po-

litical and legal institutions of government. The way legal decision-making is legitimized (at

least in continental Europe) is partly still rooted in concepts that come from a time when legal

thinking was formalist. But in the second half of the 20th century, and for reasons that I will

discuss at the end of my talk, legal practice has been increasingly relying on substantive jus-

tice, i.e. legal decision-making that focuses on the facts of the case, and the balancing of

(sometimes "extra-legal") principles and values, rather than on the "application" of formal le-

gal rules to the facts. This is a phenomenon that Max Weber has talked about long before the

advent of constitutional courts in Europe, which makes it intriguing to revisit his thoughts on

the issue.

2. Formal and substantive tendencies in law according to Weber

Weber (Weber, 1980:512-514) argues that the increasing reliance on value-based jurispru-

dence threatens the basis of the legitimacy of law, which relies on law's predictability for eco-

nomic and other actors. For Weber, there are two contradicting and competing strands in legal

thinking that influence the real-world legal decisionmaking and the building of judicial insti-

tutions2: Duncan Kennedy's succinct explanation of Weber's thoughts on the issue deserves a

longer quote:

The different modes of modern legal thought are ideal typical descriptions of what isdone by the specialists in lawfinding (as opposed to lawmaking) when it comes to de-ciding how to apply enacted law to cncrete cases. These can be judges, but they canalso be bureaucratic administrators, or professors critiquing judges, or professors decid-

2. For an introduction into this topic and Weber's sociology of law in general, see Kennedy, 2003 andFeldman, 1991.

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ing hypothetical cases.

Among systems that have gotten beyond supernatural methods (oracles, trial by ordeal),and also beyond ad hoc decision, Weber distinguishes modes of legal thought accordingto how close they are to his unequivocally most rational mode, which he calls "logicallyformal rationality" (LFR):

'Present-day legal science, at least in those forms which have achieved the highestmeasure of methodological and logical rationality, i.e., those which have been producedthrough the legal science of the Pandectists' Civil Law, proceeds from the followingfive postulates: viz.,

"first, that every concrete legal decision be the "application" of an abstract legalproposition to a concrete "fact situation";

second, that it must be possible in every concrete case to derive the decision from ab-stract legal propositions by means of legal logic;

third, that the law must actually or virtually constitute a "gapless" system of legalpropositions, or must, at least, be treated as if it were such a gapless system;

fourth, that whatever cannot be "construed" legally in rational terms is also legally ir-relevant; and,

fifth, that every social action of human beings must always be visualized as either an"application" or "execution" of legal propositions, or as an "infringement" thereof."3

[...] Formal rationality in general, whether of the higher "logical analysis of meaningtype" (i.e., LFR), or the more primitive British precedential type, contrasts sharply withthe very important Weberian category of "substantive rationality" as a mode of legalthought.

"[S]ubstantive rationality".., means that the decision of legal problems is influencedby norms different from those obtained through logical generalization of abstract in-terpretations of meaning. The norms to which substantive rationality accords predom-inance include ethical imperatives, utilitarian and other expediential rules and politicalmaxims, all of which diverge from the formalism ... which uses logical abstraction."

In LFR, when the lawfinder acts, by deciding the case or making his academic interpre-tation of what the law "is," his action is always "value rational" in Weber's usage. Onthe basis of the logical analysis of the meaning of the extant valid norms, he chooses anorm, without regard to the social consequences of his choice, and then applies it to thefacts at hand, again without regard to the social consequences.

This contrasts sharply with substantively rational legal thought. There, the judge maybe, contrary to what some commentators suggest, acting in a value-rational way (say,by applying religious commandments such as "thou shalt not kill" or absolute naturalrights such as "respect private property"). But the legal actor is also substantively ratio-nal if what he does is to identify a set of societal goals, or a set of partial political objec-tives of the ruler, and then craft his rule to maximize their accomplishment through asituation-sensitive balancing test.

[...] The point about substantive rationality is [...] the extra-juristic or "external" deriva-tion of the criteria of decision, that is, their derivation from the general normative prac-

3. The translation is from Weber & Rheinstein, 1954, p. 64.

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tices of society.

Weber is highly critical of the substantive mode of legal rationality. Duncan (2003:1053) ex-

cellently summarizes Weber's "puzzling" response to "antiformal" tendencies in law:

As he lays out the positions, he repeatedly points out that what is proposed is a rever-sion to substantive justice, is a "challenge to legal formalism," and, here is the keycharge, that the reformers, "in view of the inevitability of value-compromises, very of-ten [would] have to forget about abstract norms and, at least in cases of conflict, wouldhave to admit concrete evaluations, i.e., not only nonformal but irrational lawfinding."Weber here uses the word "irrational," according to his categorical scheme, to refer todecision that is oriented to the facts of the particular case rather than to rule application.In context, this means that because of ideological conflict, on the one hand, and thevagueness of notions like social justice, on the other, the judge will have to decide eachcase on its facts. The general program that he attributes to the anti-formal thinkers fitswell with this conclusion, since Weber sees them, as noted above, as committed to free-ing the judge up for the "balancing of values in every case." At the least, "the juristicprecision of judicial opinions will be seriously impaired if sociological, economic, orethical argument were to take the place of legal concepts."

Observing the state of society and the conservative judiciary of his time, Weber doubts that

the extension of substantive rationality - a demand frequently made by scholars in the "Free

law" tradition of Eugen Ehrlich - will do social reform a service (Kennedy, 2003:1054). On

the contrary, substantive law, in his view, threatens the calculability of the bureaucracy and

judiciary, thus putting the control of society over the state machinery at risk.

No matter whether one follows Weber's normative assessment of the antiformal tendency in

law, his analytical approach is useful and provides insights into many phenomena that we can

observe today. In particular, Weber reminds us that the essence of law is not justice, but for-

mal process. In a plural world with widely diverging world-views authority cannot be based

on a homogeneous value-system. Formal law, administered by a professional elite and

shrouded with the myth of objectivity and neutrality, provides an efficient source of legitima-

cy for state authority. This myth is not a "deception", as Marxists would have it. It is a regula-

tive idea which holds that the actors in the state and in society are subjected to a set of trans-

parent rules, and that the application of these rules to their behavior by the courts is not

arbitrary, but yields more ore less calculable results. It doesn't matter, in this view, whether

the legal system is formal in a idealtypical Weberian way. A close reading of Weber's argu-

ment reveals that he is aware that it is not the German/continental European approach of ab-

straction and systematization that produces calculable results. Instead, calculability can also

be produced by the common law with its pragmatic, case-by-case method. It is not law-as-

text or law-as-doctrine that "rationalizes" legal outcomes, but the practice of the legal appara-

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tus itself. Predictability is the outcome of the constant reiteration of the same or similar legal

questions by the courts, which results in the routinization of expectations by the social actors

inside and outside this system.

This insight is implicit in Weber's work, he does not discuss it in detail.4 However, the current

state of knowledge in socio-legal research supports this position. Empirical research has at-

tacked the formalist position that holds that law is an exercise of text-based reasoning and

logic. For all we know, legal interpretation is a context-based social practice that takes place

in a "juridical field" (Bourdieu, 1987) in which many "non-legal" rationalities have an effect

on the outcome of a legal case. Law structures outcomes, it doesn't determine them. On the

other hand, just as political decisions are never - except in extreme circumstances - com-

pletely arbitrary, but always bounded by institutional constraints, expectations, and pressures,

neither is law just another form of politics. There remains an analytical value to the idealtypi-

cal difference between law and politics: "political" refers to the freedom of decision from the

constraint of rules, "legal" to the constraint by rules that is imposed on the decision-maker.5

However, constraint is not the same as predictability.

Taking this approach, we are presented with a problem when looking at highest courts that

deal with exceptional cases. Predictability (and thus: formal rationality in a Weberian sense)

is in many cases not the main issue. On the contrary: often it is fully unclear to observers how

the highest courts will decide. This is not surprising, given that the law-as-text or law-as-doc-

trine cannot always - or even in the majority of cases - yield clear and unambiguous answers.

More often than not, a legal problem has two or more perfectly "rational" answers. In colle-

giate courts, in numerous cases the outcome is decided by a slim majority of justices. It may

even be, as Luhmann argues, that is the very incalculability of a formal procedure that makes

it legitimate (Luhmann, 1969). But this, again, renders a certain theoretical construction ob-

solete: if legal rationality, in this cases, is not rooted in the predictability, what legitimacy

claims can legal actors have to decide a question that has eminent ramifications for political

life?

This is a question with which Weber struggled himself, and his answer was to stick to formal-

ist legal thinking even though he saw that it was nothing more than a useful fiction. The rea-

4. Weber is obviously critical of the assumption that the judge is nothing more than an automaton that appliesthe law ("Paragraphen-automat"), see, for example, Weber, 1980:826.

5. Note that this distinction has no moral implications. In some circumstances, a "political" decision can bemorally better than a "legal" one, or vice versa.

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son was that for him, judges in the Germany of his time could not be trusted to use interpreta-

tive freedom in a progressive way because of their conservative background. Instead, Weber

argued that social progress should be achieved through legislation, which would then bind the

formalist judiciary.

In short, formalism, according to Weber, increases the probability that legal decisions are cal-

culable, while an increase in substantive justice makes it harder to know in advance how a

court will decide. This, in turn, creates a legitimacy problem. That this legitimacy problem

does in fact exist can be seen by the vocal criticism of judicial activism.

3. Idealtypical models of courts in democratic society

It has become clear that the role courts play in modern democracies has changed in the course

of the last decades. However, it seems that we are still lacking cognitive and normative expla-

nations for this shift, which has not been uniform comparatively and not linear historically.

For the purpose of this paper, I propose three idealtypical models of the relationship between

the courts use of formal or substantive law, on one hand, and the principle of democratic sov-

ereignty, on the other: 1) Courts-as-night-watchmen, 2) Courts-as-umpires and 3) Courts-as-

wise-men6. The labels for this models are meant as illustrative simplifications rather than ana-

lytical concepts. The models describe different mechanisms of achieving legitimacy for the

courts - that is, the idealtypical belief of those subjected to their rulings in one way or another

that the courts are in fact entitled to make final judgements on important social or political is-

sues. Legitimacy has a normative aspect, i.e. the contested story about why decision-making

power should be given to an institution. In an empirical perspective, legitimacy is an impor-

tant source of the autonomy of courts from those to which they owe their decision-making

power. After all, courts usually have no power resources of their own. They depend on the

other branches of government to comply with their rulings. And this compliance results from

several sources: because people think that it is in their interest to comply or they feel forced

to do so (the rational choice story), or because at least some of them actually believe that it is

6. In my talk, I used the term "courts-as-prophets" (similar to Barth, 1974), since I was thinking about the waythey "reveal" law, drawing from various substantive sources such as vague rights provisions, morals, and traditi-ons. However nice the term is to get a lively discussion, it probably misplaced. Prophets have usually been weakduring their lifetime and have generally been revolutionary in relationship with authority, rather than being thepowerful upholders of the status quo that we see in many constitutional democracies. They also derive their aut-hority from their personal charisma, not from an office. I thank Julika Rosenstock for alerting me to this. ForWeber's sociological analysis of prophets, see Weber, 1980:268-275, and for his account of law revealed by "lawprophets", p. 504.

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the right thing to do (the Weberian story).7

3.1. Courts as night watchmen

The first model, courts-as-night-watchmen, is tied more closely to legal formalism. I borrow

the term "night watchmen" from Lassalles famous polemic against the liberal state, which,

according to its proponents, should be limited to enforcing internal and external security, and

leave the rest to the citizens. In analogy, in this model, courts are simply there to secure the

framework of social life according to given rules. The classic democratic vision of the sepa-

ration of powers, parliamentary souvereignty sees the judges as both servants and masters:

they serve only the law, but at the same time they supervise the behavior of the other branch-

es of government. The model is formalist in the sense that the judiciary can only act within

the limits of the law that has been made by powers that have democratic credentials, i.e. the

legislature or the executive which has derivative (or, in some cases, original) lawmaking

powers. The judiciary has no business making law or pursuing policies in this model. The

task of courts is to produce judgements that are predictable and strictly "legal", policing the

state and civil society, ensuring that the behavior of all actors within a society complies to the

norms that have been created by the legislator.

Counterintuitively, this model applies also to the later stages of the development of Commu-

nist or Socialist states. To be sure, an important difference to the liberal model is that courts

were never given the power to control the government. Socialism was not interested in a sep-

aration, but instead in the unity of powers in the hand of the party state. Yet, it was exactly

law's promise of predictability and rationality that has made it attractive to the rulers - in sum,

it was more than simple window-dressing for the use of external relations. As Inga Markovits

has shown in recent contributions, using the GDR as an example, there has been a shift from

"socialist" value-jurisprudence to legal formalism in late socialism (Markovits,

2006;Markovits, 2007, see also Markovits, 1989). The same can be said, for example, in

Poland (Ziemer, 1987) and Hungary (Zsidai, 1996), or, for the 'Glasnost' era in the Soviet

Union, which was much less successful in efforts of "legalization" (see Barry, 1992). This

legacy is important if one wants to understand the state of the judiciary in the wake of the fall

of communism (for East Central Europe see Kühn, 2004) and is not dissimilar to the post-au-

thoritarian transformations of, say, Germany, Spain or Italy.

7. On the relationship of legitimacy and legality in Weber's work, see, for example Lembcke, 2008 or, in Ger-man, Lübbe, 1991.

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The practice of courts, in the formalist model, is considered to be legitimate as long as they

apply the law in a strictly technical sense. In theory, the courts cannot be anti-majoritarian,

because they strictly observe the democratically legitimated law (whatever truth or fiction is

in the attribution of "democratic" quality to some law-making procedure). The problem with

this theory, of course, is that "strict application of the law" is a fiction itself. Judges inevitably

"make" law, because law does not exists outside the act of "applying" a chosen interpretation

of a language construct called "law" to messy "social facts", which themselves are the prod-

uct of a choice. The predictability of law is not so much a inherent quality of the law itself, as

I have argued, but an effect of the legal system that routinizes and systematizes certain legal

outcomes. In sum, the formalist model is a nice normative theory, but it is empirically proble-

matic in the case of high courts that have to decide singular cases, based on vague and open-

ended constitutional provisions. I think that this problem cannot be argued away by legal the-

ory itself. It can only be addressed by a more comprehensive political theory that can accom-

modate the limited decision-making power of the judiciary.

3.2. Courts as umpires

In some cases, this decision-making power is considered legitimate normatively and accepted

in practice. The second model has at its core the social function of conflict resolution.8 In this

model, courts as mediators are the centerpiece of a legal system, not the formal law. Courts

use law to resolve conflicts, but they don't rely on law only. Instead, they rely a variety of

tools, practices and resources to fulfil their social function. One central proponent, in Politi-

cal Science, of this theory is Martin Shapiro (Shapiro, 1981), who has called this model "tri-

adic dispute resolution". In contrast to the formal model, the primary question is not whether

law is predictable or fits into a logical structure, but whether a decision can put a serious con-

flict to rest or at least decide it with authority. This way of looking at law and the judicial

process is rather indifferent towards the tension between formal and substantive law. Its

court-centered perspective assumes that courts will use any form of arguing that will help

them make a judgement acceptable to various audiences: the parties, the legal experts, the

other brances of government, and society as a whole. This is a difficult task, though, because

each of these audiences has different set of rationalities: political interests, professional be-

liefs, or notions of justice. The court also relies on what has been called the "output-legitima-

cy". As far as the courts, on the whole, prove to be good arbitrators in the service of the

8. Weber refers to conflict resolution mainly in his discussion of patrimonial justice. See, for example, Weber1980:487seq.

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"clients", they and their decision power is considered legitimate. As such, they can even pro-

vide useful functions for politicians, providing additional legitimation for their policies or de-

ciding controversial issues that are considered too "hot" for the political branches themselves.

As Herman Schwarz has noted, "judicial decisions in constitutional law often less deductions

from pure law, but work as arbiters in insesely fought-over issues, gives and takes something

from each side to preserve own legitimacy" (Schwartz, 2000:130). However, this also im-

plies the danger that, as soon as the court steps out of the triadic role, it looses legitimacy and

risks to endanger compliance to its rulings. In sum, the triadic model does not necessarily

contradict the formal model of law and legal, since courts will more often than not claim to

apply "the law and nothing but the law" to justify their decision. However, the dispute resolu-

tion function of adjucation offers a powerful source of legitimacy in this case. As we have

seen, Roman Herzog also refers to the arbitration function as a normative ideal in his philip-

pic against the ECJ.

3.3. Courts as councils of 'wise men'

The third model clearly is clearly the most controversial. In this model, it is not pretended

that judges apply only the law. Instead, a limited lawmaking power is assumed. In order to le-

gitimize this, courts are seen as agents of constitutional "values" in competition with the other

branches of government. The real or pretended "mission" of the court is thus to bring these

"values", as they are being constructed from the text of the constitution, or tradition, or both,

to bear in political life. In some way, courts acts as "philosopher-kings" which, legitimated by

their expert wisdom, invent concrete rules from general principles. To be sure, these "inven-

tions" are not arbitrary. However, the interpretative freedom is broad and not formally depen-

dent on the approval of the legislature or society-at-large. It is their status as 'wise men' and -

generally outrageously few - 'wise women' that legitimates their lawmaking power. The mod-

ern equivalent of the "wise person" is the "expert".

Normatively, the anti-majoritarian character of such kind of law-making is disputed because

the courts act in the name of the constitution which is taken to be the expression of a general

social consensus. As highest courts are staffed, at least in theory, with the most distinguished

legal experts, these experts are trusted to "know what they are doing", and to act in an non-

partisan way. In contrast to the supposedly short-sighted politicians who act in a populist way

to preserve their own interests, judges are portrayed to be "above politics" and to have only

the general interest in mind. One vocal proponent of this idea has been a disciple of Hans

Kelsen, the Austrian Réné Marcic (Marcic, 1957), who writes that, "for the legitimation of

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the state a 'stability factor' is necessary, which provides the state-ness of the state and repre-

sents the static element of politics. In earlier times, it was the crown, but that is not necessary,

it can also be a council of wise men." (336-337, my translation). Marcic, who writes in the di-

rect aftermath of World War II, believes that an institution is necessary, to which the people

can look up to and which they can trust whenever there is a crisis. For Marcic, this institution

is the constitutional court, ''the most wonderful thing that has ever arisen from human minds''

(Marcic, 1963:212, cited in Haltern, 1996), a guardian of reason that, just like a monarch, is

above everyday politics. Marcic is a wonderful example for an optimism - or rather: naiveté -

as to the belief in reason and objectivity that he ascribes to the judicial personnel in the

courts. However, only few will share his optimism. His view is rather interesting in an empir-

ical perspective: it might well be that an institution like a constitutional court comes to re-

semble a monarchic institution in a society that longs for definitive answers and has no pa-

tience for political bargaining and compromises, and that this creates an unexpected source of

legitimacy for the court, a legitimacy that does not square well with modern democratic polit-

ical theory. I will return to this thought in the last section.

A different approach in defence of the third model attacks an idealized democratic view of

the parliament. As Kim Lane Scheppele (Scheppele, 2001) has argued, "there may be some

times when strong constitutional courts are more democratic than elected parliaments and

elected executives." In this view, "constitutions written before any of presently viable politi-

cians knew what their position would be may in fact have more widely supported provisions

than the narrowly self-interested legislation that comes later once there are more clearly vest-

ed interests to protect." Thus, "constitutions may in fact be better signs of what democratic

publics want from their governments than legislation, and so aggressively enforcing constitu-

tional provisions to the detriment of ordinary legislation may be what democratic publics ac-

tually prefer and what democratic publics expect democracies to provide." However, in the

light of the open-endedness of constitutional provisions, this view is at least disputable.

Judges may in fact sense what the public wants, and interpret the constitution accordingly.

But nothing in the institutional setup of a court guarantees that they will in fact do so. In fact,

some scholars argue that in highly contentious issues, highest courts have sided with power-

ful social groups rather than the democratic majority. Ran Hirschl (Hirschl, 2004:16), for

example, documents a move "towards juristocracy" in his analyses of Canada, Israel, New

Zealand, and South Africa. He makes the point that "the global trend toward judicial empow-

erment through constitutionalization should be understood as part and parcel of a large-scale

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process whereby policy-making authority is increasingly transferred by hegemonic elites

from majoritarian policy-making arenas to semiautonomous, professional policy-making bod-

ies primarily in order to insulate their policy preferences from the vicissitudes of democratic

politics."

Others have claimed that powerful constitutional courts are not undemocratic because they,

rather than parliaments, are the real "deliberative" institutions in modern political systems.

Peter Häberle, a German constitutional lawywer, in an influential article, has described what

he calls the "open society of constitutional interpreters" (Häberle, 1975). He argues that in the

process of constitutional interpretation, potentially all the institutions of the state, all public

actors, all citizens and civil groups are involved. There is, according to Häberle, nobody ex-

cluded from raising their voice to influence the way the constitutional court will decide. This

way, the constitution is constantly re-interpreted in a public process. The court's task is to

take all the discourses into account and strike a balance between them that is in the best inter-

est of society. Again, this is nice normative theory, but has little to do with what happens in

reality. Erhard Blankenburg and Hubert Treiber (Blankenburg, 1982) have argued against

Häberle that, on closer look, the circle of those who have an actual influence on the final out-

come is limited to a fairly small circle of mostly legal actors. Also, there are no institutional

guarantees that the court is taking the free-floating views into account. At the end of the day,

the outcome of a case depends upon who the judge in charge of drawing up the draft of the

decision is, and how this draft is negotiated between the members of the court. In most cases,

it is completely up to the courts whether they have hearings in which representatives of social

groups voice their views on the questions, which groups are invited and which are not, and

whether this views make any difference at all in the final decision.

The anti-majoritarian character of this model can be disputed in a different way, though. As

Hamilton has famously argued, the “judiciary has no influence over the sword the purse”. Be-

cause their lack of implemenation power and the possibility that their judgements are simply

ignored, courts have to take the opinion of relevant social groups into account (See for the

case of the Supreme Court Rosenberg, 1991). Because of the inherent weakness of the ju-

diciary, power holders - whatever their democratic and law-abiding pedigree - are generally

able to curtail the courts powers, make changes to the composition of the court or even brush

aside the courts unless there is strong opposition. Georg Vanberg has made this argument in

his analysis of the German Constitutional Court (Vanberg, 2004). There are numerous exam-

ples in Eastern Europe which show that without social support, constitutional courts have

– 12 –

been powerless vis-a-vis the executive, for example in Ukraine, Belarus, Russia or the Cen-

tral Asian states (Schwartz, 1997). However, this argument does not imply that courts are in-

herently friendly toward majorities, as shown by Ron Hirschl's proposition that in many cases

courts uphold the interests of the powerful rather than those interests that are negotiated in the

democratic process.

It seems that we are witnessing a process for which traditional political theory lacks an ade-

quate description and also a normative justification. The old model of the court bound by law

has become empirically questionable, but no new theory exsists that could take its place. In

this paper, I do not intend to develop such normative theory. My claim is that we need to un-

derstand the empirical processes that have led to the current situation first. It may well be that

a unified normative theory of judicial empowerment might not be possible at all. In fact, we

might be left with having to take very particular local circumstances into account in order to

judge the merits of judicial empowerment.

4. The parallism of legal deformalization and judicial empowerment

I argue that - at least in continental Europe - there has been a shift from the first, more for-

malist model to a legal culture where the courts, employing a dynamic style in the service of

substantive rationality have been empowered and more visiblity taken a role in not only law-

making (which they have always been engaged in), but also policy-making.9 There are sever-

al possible causes for this that have been put forward in the literature.

4.1. Rise of the welfare state

One is the explanation Weber gave himself: He pointed to the rise of the welfare state and the

bureaucracy needed to administer it. Formal law was not in the position to deal with policies

that needed to address individual problems such as poverty, unemployment, labor disputes

that had a clear affinity to normative concepts such as equality and justice. As he saw it, ad-

ministering justice often stood in opposition to the formal rationality in law that aimed for

predictability (of contract law, for example). The rise of the welfare state has proven Weber

right. The need to administer system based on enforceable rights of the individual citizen to

social support such as unemployment benefits, social security, medical treatment, and so on,

has transferred enormous decision-making power to the bureaucracy and the courts (Teubner,

9. To be sure, this shift itself has to be seen in historical perspective. The "deformalization" of the law that canbe observed in the last few decades follows a previous "formalization" which peaked in the 19th century. Bothstrands of legal thinking always coexisted.

– 13 –

1986)10. Supporters of the old formalist model of law were accutely aware of this irreversable

process (see Forsthoff, 1968). In Germany, many parts of the labor law are uncodified and

have been developed exclusively by the courts. And constitutional law has also responded to

social problems that would have been of no interest to formal contract law.

4.2. The devaluation of "the political" and authoritarian legacies

Second, it is often pointed to the legacy of human rights violations by authoritarian regimes

that gave rise to the new constitutionalism in the aftermath of such regimes. Kim Scheppele

has coined the descriptive term of "Constitutional Interpretation after Regimes of Hor-

ror"(Scheppele, 2000). Earlier, Mauro Cappelletti (Cappelletti, 1989:5) had characterized the

introduction of constitutional review in post-war Europe as a an "answer to the exigency of

reacting against, and possibly preventing the return of, past evils." Empirically, the applica-

tion of this hypothesis yields mixed results. While it is certainly true that the monstrosity of

National Socialism did put the question of Human Rights on the agenda of post-war Ger-

many, Postcommunist Russia is a case that warns against stretching this line of argument too

far. The worst atrocities of Stalinism did little to foster a court- and rights- centered legal cul-

ture after the breakdown of communism. However, it seems safe to say that the common cul-

tural legacy of such regimes is the devaluation of "the political" and politicians. Law, with its

claim to truth and purity, is one way of responding to the loss of trust in the political process.

In countries that have never experienced a complete moral breakdown of the political order,

the faith in the legal as opposed to the political process is generally not as pronounced (al-

though the U.S. provides an interesting counter-example which is related to its federalist na-

ture and its constitutional rigidity).

On a more speculative note, there might be an affinity of national political cultures to the idea

of a "council of wise men". This has been argued for the German case. The authoritarian lega-

cy in German political culture is not limited to National socialism. Klaus Beyme has argued

that this was one reason constitutional review was so successful in Germany: "deficiencies of

a democratic tradition, and the German tendency to emphasise legal principles more strongly

than political participation certainly played a part when the new institution was created." (von

Beyme, 2002:102). Some have even argued that one explanation of the strong presence of the

10. In the German socio-legal literature, there is an intensive debate on the effects of the welfare state on lawand legal theory which would deserve its own discussion, but which is beyond the scope of this paper. Interes-ting contributions to this debate come, inter alia, from Franz Neumann, Jürgen Habermas, Niklas Luhmann, Ul-rich K. Preuß, Rudolf Wiethölter, Gunter Teubner and Dieter Grimm.

– 14 –

Federal Constitutional Court in the aftermath of the second world war was its function as "Er-

satz-Kaiser" (Surrogate emperor) or father replacement for a society that was lacking a father

figure (Maus, 1989). But one does not need to resort to social psychoanalysis to conclude that

there are historical-cultural legacies that have to be taken into account when explaining natio-

nal differences in the role of courts in a national system.

4.3. Constitution-making, interregional pressures, and judicial "windows ofopportunity"

The waves of postauthoritarian constitution-making after World War II and the second half of

the 20th century was a contribution to the deformalization of law, on one side, and to the rise

of the constitutional judiciary, on the other. The old explanation that constitutional review is

mainly a function of federalism has since then been invalidated (See Shapiro, 1999:195), al-

though many federalist systems do have a constitutional court.11 Each new constitution con-

tained a bill of rights with rather vague and open-ended language that needed interpretation.

Also, in post-Communist Eastern Europe at least, there was certainly a tendency to take over

Western models, including the institution of a constitutional court, often used a s token for

"We have the rule of law, too". The Slovak constitutional lawyer Radoslav Procházka has

gone so far as to characterize the introduction of Constitutional Courts as part of an inter-re-

gional public relations competition for recognition by the Western countries and institutions

(Procházka, 2002). From the few anecdotal evidence that exists (for example, Scheppele,

1998) it is clear that the adoption of the model was often less the result of a carefully planned

and thought-trough legal transplant but resembled more a creative exercise of "copy & paste"

of rules and mechanisms. There exists, however, almost no comparative empirical research

on the genesis of the new courts in the post-communist area.

As Alexei Trochev has argued, judicial empowerment is highly contingent, non-linear and

dynamic process. For him, it is a "dynamic feedback among the three variables: the court de-

sign, judicial decision making, and the enforcement of court decisions" (Trochev, 2008:19).

Since the constitution is a legal document, the "highest law of the land", it is not surprising

that courts, in particular constitutional courts, where they existed and where the justices felt

self-confident enough, took up the opportunity to assert their interpretative authority as far as

their jurisdiction allowed. Institutions tend to aggrandize their influence if the structural con-

text allows them to and windows of opportunity open up. In the case of courts, that means,

11. This is not surprising given that a multi-level system as a federalist system is in need of an arbitration in-stance outside of the central state apparatus to resolve questions of competence that almost inevitably arise. Seefor a list of federal countries http://www.forumfed.org/en/federalism/by_country/index.php.

– 15 –

when decisions come in that allow them to gradually claim the exclusive interpretative au-

thority over the constitution for themselves over time. One wide open window of opportunity

is certainly present if the constitution is a patchwork of conflicting regulations that leave

many questions unanswered - as in the Polish constitution before 1997 - or which, for exam-

ple initially in the Hungarian case - is seen as a transitory document without much legitimacy

(see for both cases Procházka, 2002). But even constitutions that are carefully and systemati-

cally drafted, such as the German constitution of 1949, present opportunities for judicial self-

empowerment. As has been pointed out before, the inclusion of vague and open-ended rights

provisions, which defy traditional methods of legal interpretation, has led to a deformaliza-

tion of law that has resulted in the increase of judicial interpretative freedom. On the other

hand, drafters of constitutions often design "gaps" in the constitution on purpose. This is ei-

ther because they want to shield the subject from judicial interference and leave its regulation

to the government.12 Legal "gaps" or uncertainties can also be caused by fundamental dis-

agreements between the different groups that negotiate in the drafting process, which often

leads to, as Cass Sunstein has called them, "incompletely theorized agreements in constitutio-

nal law" (Sunstein, 2007) or to what Carl Schmitt has termed less sympathetically "dila-

torische Formelkompromisse", formulations that are simply compromises aimed to delay a

potential conflict (Schmitt, 1989:31-32).13

However, event the widest open windows of opportunity will not lead to (substantial) judicial

empowerment if judges do not use the opportunity. This can be due to a large variety of fac-

tors. Their socialization in the old system might make them cling to formalist ways of think-

ing and hesitant to take responsibility for decisions that might have political repercussions.

They might be politically close to the political powers in government and parliament. They

might fear retaliation by the political actors and feel that there is not enough support in socie-

ty to defend them.14 All in all, much depends on the personalities and biographies of the

judges in the highest courts. However, there is a chronic dearth of research on this topic.

12. This is a phenomenon that has been pointed out by Weber in his analysis of the constitution of the constitu-tion of the German empire which was designed by Bismarck to minimize democratic influence over politics(Weber, 1980:194, see Schatz, 1998).

13. An unresolved disagreement over a fundmental policy decision, for example, is present in the German cons-titution which provides, in article 14, a guarantee of property rights. At the same time, article 15 stipulates thatland, resources, and industrial assets can be nationalized. According so some interpreters, article 15 would pro-vide a basis for a socialist economic system. Given the post-war political and economic development of Germa-ny, it is not surprising that this constitutional provision was hardly ever referred to.

14. As Shapiro (Shapiro, 1999) shows, there are a couple of judicial strategies that courts use to increase theirinfluence even in a hostile environment.

– 16 –

4.4. The growing web of constitutional law and parliamentary self-disempowerment

Once the judges have successfully used a window of opportunity for judicial self-empower-

ment, there is a chance that this empowerment becomes self-sustaining. Alec Stone Sweet

has shown how a political system changes from the a system of parliamentary sovereignty to

a system where “constitutional judges will increasingly behave as sophisticated legislators,

and […] legislators will act as constitutional judges do” (Stone Sweet, 2000:3).

In political systems with constitutional review, the task of authoritatively determining the

specific normative content of the constitution has been delegated to a judicial body purport-

ing to decide not on the basis of political considerations (that is, according to ideological or

material interests), but only on the basis of the normative structure which has been accepted

by all the political players as binding – the constitution. The justices have to decide important

and divisive political questions and, at the same time, need to preserve their legitimacy and

independence. If successfully, this is achieved by two main tactics: First, by justifying their

decisions normatively, i.e., in reference to the law. As argued above, the “legal model” of

constitutional review has to postulate that the decisions are in fact only based on the logic of

the law – otherwise the court could not be considered a neutral body and its legitimacy to de-

cide such questions would break down. Second, they avoid alienating politically powerful

parties to the dispute by attributing a full defeat to them. Instead, they achieve their aims in

smaller steps. Through their decisions, the justices have altered the normative structure of the

political system. They do not pronounce what is already objectively existing as constitutional

law, but they actually create norms where there have been none before the question was

brought up in the court.

With this step, Stone Sweet is again at the beginning of the circle. The players in the constitu-

tional politics game are in a different normative structure and have „learned“ something

about how this game works. Thus, constitutional justices exert "pedagogical authority over

future legislative processes", providing a "feedback-effect" into the political system. A result

of this circular process is a growing politicization of the constitutional judiciary and a corre-

sponding judicialization of law making and executive behavior (194/195). An ever growing

web of constitutional imperatives increasingly narrows down the leeway legislators have.

But the transfer of decision-making power is not only, or even in the majority of cases, driven

by the courts. Legislators, by initiating abstract review procedures to either frustrate legisla-

tive projects of the government or to get rid of difficult or unpopular decisions (Graber,

1993), promote the judicialization of politics, constrain themselves even further, and hand

– 17 –

over power to the judiciary.

4.5. The rise of the transnational legal expert, antimajoritarian institutions and the"charisma of natural law"

Weber, in his description of the historic process of the "disenchantment of the world", has

pointed the increasing role of the expert ("Fachmensch") that has come with this disenchant-

ment. The modern citizen no longer trusts persons with magical powers. Instead, people put

trusts in those who have, or claim to have, professional expertise (see, for example Weber,

1988:594).15 In an increasingly complex, technically advanced and globalised world, the in-

fluence of experts is constantly rising, which, in many respects, decreases the possibility of

democratic politics (Reddy, 1996). This also is true for legal experts, even though their claim

to expertise has become increasingly under attack from other, non-legal expert knowledge,

not only in the court room.16 Lawyers have always, although in varying degrees, part of the

power elites, mainly because of their technical expertise in the management of the state appa-

ratus (Halliday, 1997). But especially in law-driven, transnational institutions such as the

EU, the influence of legal elites has taken on a completely new quality (Cohen & Vauchez,

2007; Vauchez, 2008).

One also has to look how legal professionals are involved in transnational networks that im-

ply a certain way of thinking about law. In an influential article, Bruce Ackerman has called

attention to what he calls the "Rise of World Constitutionalism" (Ackerman, 2001). Constitu-

tional and other courts - in various degrees - take part in a global conversation on constitutio-

nal law and they can - if they so choose - always point to successful models in other coun-

tries, and to the effects that a deviation from this model will have for the future of the

country.17 Cathrine Dupré (Dupré, 2003), for example, has shown this for the Hungarian Con-

stitutional court, who has creatively "imported" jurisprudence from the German Constitution-

al Court. But while pointing to other courts' jurisprudence is used as a legitimating device in

some countries, in the U.S. it stirred up a huge controversy about the undemocratic nature of

15. It is interesting to think about the conceptual difference between the priest or a schaman, who claims to ha-ve "expertise" on how to conduct religious and magical rituals to cause the forgiving of sins or the fall of rain,on one side, and the modern technical expert. Weber's answer would probably be that it is possible, at least intheory, that a non-expert can, based on his or her own intellect, find out whether an "expert" does in fact havethe expertise.

16. Think of the economic analysis of law, neuroscience, critical legal theory, and other disciplines that claimthat formal legal rationality is inadequate to solve questions of, for example, economic efficiency, criminal re-sponsibility, or social justice.

17. Often, the models they point to are constructed to serve their particular argumentative point, however, thisis often not obvious to the target audiences.

– 18 –

citing foreign law (Waldron, 2005).

Lastly, the rise of the expert has been visible in the growing significance of "nonmajoritarian

institutions" (Thatcher, 2002). Not only (constitutional) courts are nowadays out of the reach

of democratic politics. As Thatcher and Stone Sweet explain, "In the fields of utility regula-

tion, telecommunications, antitrust, and media pluralism, and even in the provision of health

and welfare benefits, myriad independent regulatory bodies have been created and become

the loci for making new rules, or applying existing ones to new situations, at the national lev-

el. At the supranational level, central bankers, insulated from direct political control, set mon-

etary policy."(1).

Taken together, the phenomena of the growing influence of national or transnational experts

and institutions that are not accountable to majorities create challenges for the theory and

practice of democratic politics. I argue that the "rise of the constitutional judiciary" has to be

discussed in the context of this development. However, many questions arise: is legal exper-

tise comparable to, say, the expertise of a natural scientist? Are there universal legal princi-

ples that are independent of the local cultural context and democratic decision-making? Can

we talk of a "transnational constitutional law" similarly to the ECJ's use of "common consti-

tutional traditions"? All these questions lead to the old debate on the legitimacy of "natural

law" versus "positive law". Can the legal expert legitimately "discover" higher-order princi-

ples that are above, or inscribed in, the written law, that only he or she can establish with au-

thority, and which is independent of the will of the maker of the law? Or, in a different phras-

ing: do universal human rights exist that break open the iron cage of positive law? This

question has not been solved theoretically in a normative sense, and it will probably never be.

We are left with studying empirically how this legitimacy is negotiated on the ground: how

struggles involving real people and real problems are transformed into legal problems, and

how decision-making authority is constructed, legitimated, and accepted. In each "legal cul-

ture", the answer will be somewhat different.

Weber has added his own cryptic note to this debate. For him, the idea of Human Rights is

the apotheosis, or glorification of the "Charisma of Reason" (Weber, 1980: 726). Charisma,

for Weber, is an anti-hierarchical, often revolutionary force in history, that, in most periods of

history, is tied to charismatic personalities, such as heroes or prophets. Since the age of en-

lightenment, however, the idea of reason and the "rights of men" has been used by the rising

bourgeoisie to challenged the feudal status quo. It has then taken on a life of its own as the

idea of "natural law", only to be disposed by positivism, on one hand, and substantive ideas

– 19 –

of law, on the other. However, the victory of positivism was never complete, and ideas of rea-

son and justice have resurfaced again and again (see Kennedy, 2003). It is impossible to de-

velop and discuss Weber's complex idea here. However, I argue that it is worthwhile to re-

think the concept of "charisma" in the context of law, a place where it is usually not expected.

4.6. Law as a transformative instrument

What seems most obvious, however, is the fit of the third model with times of rapid political,

cultural and socio-economic transformation. In these times, when old institutional and ideo-

logical constraints have been destroyed, but it is unclear what the new order will look like,

political actors and society at large is looking for normative guidelines that one can - at least

rhetorically - stick to. If the courts play a larger role in constructing the new order depend on

the right mixture of factors - legal-cultural heritage, external and internal incentives for the

national elites to show a commitment to the "rule of law", and thejudicial staff that has the

ambition and the self-confidence to use judicial judgements to further political and social

change. Whether this set of factors is present in a country is an empirical question. Eastern

Europe provides a large array of different cases. In an extraordinary case such as Hungary,

the constitutional court co-governed the country in the mid-1990s, only to be replaced by a

tamer one after the end of the so-called "Solyom court". In countries such as Poland, or the

Czech Republic, constitutional courts have been not as outspoken or influential, but have de-

cided many important questions that concerned the post-communist transformation. In other

countries, such as Bulgaria, the court remained largely passive, or often ruled with the old

elites against attempts to bring the country closer to the rule of law, as in Romania. Further

East, justices were bullied and replaced (Belarus), or courts dissolved and reconstituted that

sent a clear sign that anti-government activism was not going to be tolerated (Kyrgyzstan,

and to a lesser degree, Russia).

5. Conclusion: Does the separation of powers come to the rescue?In this short paper, I have argued that Weber's thesis of the deformalization of law adds a new

(or rather: an old) perspective to our thinking about judicial empowerment in the post-WW II

era. Even though I probably raised more questions that I answered, I hope to have shown that

"law" should be understood as a complex whole of a historically evolving empirical phenom-

ena riddled by tensions and struggles, and that Weber's sociology of law helps to understand

how some of the struggles that are channelled into legal process take shape. In particular, I

have emphasized Weber's description of the tension between substantive and formal rationali-

ty in law and the legitimacy problems that inevitably arise with the process of deformaliza-

– 20 –

tion. I have argued that the process towards more substantive law has an affinity with judicial

empowerment. This empowerment is not automatic, but depends on a host of institutional,

social, and political factors that require close empirical research. This empowerment can, but

must not, result in courts that resemble the ideal type of a "council of wise men", that as-

sumes decision making power to the detriment of institutions with stronger democratic cre-

dentials. Many critics demand that courts should be pushed back into the role of "night

watchmen" that liberal democratic political theory envisions for them. Whether this will be

possible, given the deformalization of law and the ensuing judicial empowerment that stems

from it, is not sure. Neither can I answer the question whether a roll-back is desirable. Politi-

cal theory has not yet caught up with the fact that the sociology of law has destroyed the be-

lief in formal legal rationality under the conditions of a legal culture of substantive justice.

Some think that the original idea of the separation of powers, understood as a system of

"checks and balances" can provide a legitimacy basis for judicial politics.18 Taking up a sug-

gestion by Alec Stone-Sweet (Stone, 1992, Chapt. 8), one could argue that constitutional

courts should not be theorized as the "guardians of the law", but instead as a "third chamber"

of parliament, an "adjunct policymaking body".19 In this view, constitutional courts act as

correctives or as a form of quality control for the work of the parliament. This would fit into a

line of political thinking that turns away from the focus on trying to ensure the rule of the

demos, and towards a focus on preventing the misrule of government. Government, in this

view, cannot be trusted, or might not even be able to do "what the people want".20 On the oth-

er hand, the more concentrated governmental power is, the more it is likely that the legisla-

ture and executive will use this power to the detriment of the population or certain social

groups. In this situation, the best solution is to create as many competing governmental insti-

tutions ("veto players") as it is possible without creating a complete standstill of government.

This way, it is more likely that different interests and positions will enter the political process,

18. The separation of powers plays an interesting, and hitherto largely ignored role in Weber's sociology of do-mination. See his discusion of "Collegiality and Separation of Powers" in Weber, 1980:158-167.

19. Stone Sweet's argument is limited to the French Conseil Constitutionel, and he stresses (219) that the"Third Chamber Model" is an analytical rather than a normative construct. However, I would argue that the nor-mative implications of this model are more fruitful than the analytical. One major analytical difference, in myopinion, is that parliamentary chambers argue and then decide publicly, whereas courts argue and decide in se-cret, and then publicly justify their decision. Hardly anyone is interested for what reasons a parliamentary deci-sion has been taken, since the policy choices of parliamentary parties are known in advance. In contrast, the jus-tification of a decision is typically the main source of its authority.

20. In many cases, the government cannot determine the "will" of the majority even if it wants to, because peo-ple's preferences are unclear, conflicting and oscillating over time.

– 21 –

and it will be less easy for one particular interest group to monopolize governmental power.

The rule is then, not of the "Demos", but of the "Many", as Robert A. Dahl argued when he

proposed to replace the term "Democracy" by "Polyarchy" (Dahl, 1956). Federalism, for

example, is in many instances anti-majoritarian, but still a perfectly legitimate (in terms of

philosophical theory and empirical acceptance) form of governmental organization.

However, this theory has not yet replaced the traditional way of thinking about law, politics

and democracy, and it is unclear what the special role of a judicial body is in it. This model

does also not reflect that in most cases, there is a clear hierarchical relationship between the

legal and the political branches of government. The constitutional court is the final and au-

thoritative interpreter of the constitution. In this role, it has the last word, unless the constitu-

tion is changed (which is difficult) or the political branches respond by de-facto non-compli-

ance. There are few cases where the parliamentary majority can override a decision (for

example, Poland until 1997). Taken seriously, the theory of the separation of powers, under-

stood as checks and balances, would entail a downgrade of the judiciary to the status of one

voice among others in the constitutional dialogues (Fisher, 1988) that precede important po-

litical decisions. In political systems with strong constitutional courts, nothing seems to indi-

cate that there is any serious attempt to change the situation. How much trust we put in

lawyers and judges to do things better than elected politicians might be an empirical question

that has a lot to do with the judicial and political personnel in place and the challenges of the

day.

– 22 –

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