Role Theory, Democratization and Comparative

Constitutionalism: 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 Comparative
Socio-legal Analysis of the Role of Constitutional Courts in Political Transformation Processes (September
22-24, 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 be
solved by means of purely speculative, abstract solutions valid for any place and time. Indeed there are no
such universal solutions; and surely a page of realistic comparative analysis can be more worthy than many
books 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.
 -2-

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.
 -3-

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 classify
what 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.
 -4-

vidual actors, not for institutions. For example, Parsons

focused on the characteristic behaviors of persons who occupy social positions within a
stable social system. "Roles" are conceived as the shared, normative expectations that
prescribe and explain these behaviors. Actors in the social system have presumably
been taught these norms and may be counted upon to conform to norms for their own
conduct 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 influence
outcomes.
 -5-

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 about
the „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.
 -6-

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
 -7-

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 of
words.
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 the
most important activity of Constitutional Courts. It is therefore important that Political Scientists do not
reduce their focus on the veto-player theory when studying these institutions.
 -8-

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
 -9-

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 was
connected with „legal science“ in its prototypical German variant, where judges believed they applied
norms to facts in a purely „logical“ way. On a closer reading, it becomes apparent that Weber didn‘t think
that 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 the
knowledge presented to the Constitutional Court during the proceedings.
 - 10 -

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.
 - 11 -

„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.
 - 12 -

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 1500
decisions on every imaginable constitutional question [Since 1990], the Court has
struck down roughly one law in three that the Parliament has passed, affecting nearly
every 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 quickly
forgotten once the parties are voted out of power and, as opposition, get some clout over government policy
through 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 Society
Association, July 1996, Strathclyde University, Glasgow, Scotland.
 - 13 -

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, for
example, Pokol, 2002).
34. It remains to be seen if that will actually happen, thus far, there are no signs of a radical departure.
 - 14 -

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 the
case of Germany (Shapiro, 2002:196).
37. This is party explained by Sólyom‘s international connections – he was a research fellow in Germany in
the 1980s, were he also studied the jurisprudence of the BVerfG.
 - 15 -

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 the
Supreme 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 powerful
impact of the German Länder. The importance of federalism for the power of the U.S. Supreme Court is
stressed by Shapiro, 2002.
41. For example, the opinion of the Venice Commission on the new constitution (European Commission for
Democracy 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.“
 - 16 -

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 CEE
courts were in, claims that the Courts' jurisprudence would have been very similar even with different
judges.
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 Nazi
regime had no respect at all for formalism, just its own version of value jurisprudence, one that rejects any
need of consistency.
 - 17 -

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 part
was written by him or his advisers.
46. BVerfGE 11,126, 130.
 - 18 -

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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