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Constitutional Review in Central
and Eastern Europe

Recent confrontations between constitutional courts and parliamentary

majorities in several European countries have attracted international interest
in the relationship between the judiciary and the legislature.
Some political actors have argued that courts have assumed too much
power and politics has been extremely judicialized. This volume accurately
and systematically examines the extent to which this aggregation of power
may have constrained the dominant political actors’ room for manoeuvre.
To explore the diversity and measure the strength of judicial decisions, the
contributors to this work have elaborated a methodology to give a more
nuanced picture of the practice of constitutional adjudication in Central and
Eastern Europe between 1990 and 2020. The work opens with an assessment
of the existing literature on empirical analysis of judicial decisions with a special
focus on the Central and Eastern European region, and a short summary
of the methodology of the project. This is followed by ten country studies
and a concluding chapter providing a comprehensive comparative analysis of
the results. A further nine countries are explored in the counterpart volume
to this book: Constitutional Review in Western Europe: Judicial-Legislative
Relations in Comparative Perspective.
The collection will be an invaluable resource for those working in the
areas of empirical legal research and comparative constitutional law, as well as
political scientists interested in judicial politics.

Kálmán Pócza is Senior Research Fellow at the Ludovika University of Public

Service in Budapest, Research Institute for Politics and Government, and Head
of the Center for Constitutional Politics at the Mathias Corvinus Collegium,
Hungary. He is the Principal Investigator of the JUDICON-EU project.
Constitutional Review in
Central and Eastern Europe
Judicial-Legislative Relations
in Comparative Perspective

Edited by Kálmán Pócza

First published 2024
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2024 selection and editorial matter, Kálmán Pócza; individual
chapters, the contributors
The right of Kálmán Pócza to be identified as the author of the
editorial material, and of the authors for their individual chapters, has
been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library

ISBN: 978-1-032-50660-9 (hbk)

ISBN: 978-1-032-50661-6 (pbk)
ISBN: 978-1-003-39948-3 (ebk)
DOI: 10.4324/9781003399483

Typeset in Galliard
by Apex CoVantage, LLC
Contents

List of Figures vii

List of Tables x
List of Abbreviations xi
List of Contributors xii

1 Constitutional review and judicial-legislative relations

in new democracies 1
KÁLMÁN PÓCZA, MÁRTON CSAPODI, GÁBOR DOBOS
AND ATTILA GYULAI

2 The Croatian Constitutional Court: From a potentially

powerful court to a court of rejections 28
MONIKA GLAVINA

3 The Czech Constitutional Court: The inconspicuous constrainer 57

KATARÍNA ŠIPULOVÁ AND ALŽBETA KRÁLOVÁ

4 The Estonian Supreme Court: Strength by

pragmatic collegiality 86
PALOMA KRÕÕT TUPAY

5 The Hungarian Constitutional Court: Dialogue in practice 114

ATTILA GYULAI, KÁLMÁN PÓCZA AND GÁBOR DOBOS

6 The Latvian Constitutional Court: Dialogue

and cooperation among constitutional bodies 142
ANITA RODIŅA AND DITA PLEPA

7 The Lithuanian Constitutional Court: The gradual

emergence of a strong guardian 168
DOVILĖ PŪRAITĖ-ANDRIKIENĖ
vi Contents

8 The Polish Constitutional Tribunal: Encountering politics 190

ARTUR WOŁEK AND IGA JEZIORSKA

9 The Romanian Constitutional Court: Layers

of constitutional adjudication 218
CSONGOR KUTI

10 The Slovak Constitutional Court: The promise

of Dworkinian adjudication? 244
MAX STEUER AND ERIK LÁŠTIC

11 The Slovenian Constitutional Court: Courage in times

of political instability 274
POLONA BATAGELJ

12 Central and Eastern European constitutional courts

in comparative perspective 1990–2020 294
KÁLMÁN PÓCZA, MÁRTON CSAPODI, GÁBOR DOBOS
AND ATTILA GYULAI

Index 324
Figures

2.1 Caseload of the Croatian Constitutional Court (1993–2020) 39

2.2 Frequency of the ruling types (1993–2020) (CrCC) 41
2.3 Number and average strength of rulings (1993–2020)
(CrCC) 44
2.4 Average strength of rulings by courts (CrCC) 46
2.5 Average strength of rulings by presidents (CrCC) 47
2.6 Number of rulings with at least one dissenting opinion
(1993–2020) (CrCC) 48
2.7 Dissenting coalitions (1993–2020) (CrCC) 49
2.8 Number of dissenting opinions and party affiliation
(1993–2020) (CrCC) 51
3.1 Frequency of the ruling types (CzCC) 65
3.2 Number and average strength of rulings (1993–2020) (CzCC) 66
3.3 Proportion of rulings with a least one dissenting
opinion (CzCC) 78
3.4 Dissenting coalitions (1993–2020) (CzCC) 79
4.1 Frequency of the ruling types (ESC) (1993–2020) 93
4.2 Average strength of rulings (1993–2020) (ESC) 94
4.3 Number of rulings with at least one dissenting opinion
(1993–2020) (ESC) 98
4.4 Dissenting coalitions (1993–2020) (ESC) 99
5.1 Number and average strength of rulings (1990–2020) (HCC) 121
5.2 Frequency of the ruling types (HCC) (1990–2020) 123
5.3 Number of rulings with at least one dissenting opinion
(1990–2020) (HCC) 124
5.4 Relative strength and frequency of dissenting opinions (HCC) 127
5.5 Dissenting coalitions 1990–2020 (HCC) 128
5.6 Distribution of RLCs among policy fields (HCC) 132
5.7 Time-leg between the promulgation of the law and the
decision of the HCC 136
6.1 Number and average strength of rulings (1998–2020) (LaCC) 148
6.2 Frequency of the ruling types (1998–2020) (LaCC) 150
6.3 Number of rulings with at least one dissenting opinion
(1998–2020) (LaCC) 154
viii Figures

6.4 Average strength of dissenting opinions by judges (LaCC) 155

6.5 Dissenting coalitions 1998–2020 (LaCC) 157
7.1 Frequency of the ruling types (1998–2020) (LiCC) 175
7.2 Frequency of ruling types by courts (LiCC) 178
7.3 Number and average strength of rulings (1993–2020) (LiCC) 178
7.4 Average strength of rulings by presidents (1993–2020) (ESC) 179
7.5 Number of rulings with at least one dissenting opinion
(1993–2020) (LiCC) 186
8.1 Frequency of the ruling types (1993–2020) (PCT) 200
8.2 Number and average strength of rulings (1993–2020) (PCT) 201
8.3 Number of rulings with at least one dissenting opinion
(1993–2020) (PCT) 202
8.4 Dissenting coalitions 1993–2020 (PCT) 204
9.1 Number of decisions and rulings (1992–2020) (RCC) 225
9.2 Number and average strength of rulings (1992–2020) (RCC) 228
9.3 Number and average strength of rulings (a priori vs. a
posteriori review) (1992–2020) (RCC) 230
9.4 Frequency of the ruling types (1992–2020) (RCC) 233
9.5 Frequency of the ruling types (a priori review)
(1992–2020) (RCC) 234
9.6 Average strength of rulings by judges (RCC) 236
9.7 Number of rulings with at least one dissenting opinion
(1992–2020) (RCC) 236
9.8 Dissenting coalitions 1992–2020 (RCC) 239
10.1 Number and average strength of rulings (1993–2020) (SCC) 259
10.2 Number of rulings with at least one dissenting opinion
(1993–2020) (SCC) 259
10.3 Average strength of rulings by judges (SCC) 260
10.4 Frequency of the ruling types (1993–2020) (SCC) 262
10.5 Dissenting coalitions 1993–2020 (SCC) 263
11.1 Number of decisions and rulings (1991–2020) (SloCC) 280
11.2 Number and average strength of rulings (1991–2020)
(SloCC) 281
11.3 Frequency of the ruling types (1991–2020) (SloCC) 283
11.4 Number of rulings with at least one dissenting opinion
(1991–2020) (SloCC) 287
11.5 Proportion and strength of dissenting opinions (SloCC) 288
11.6 Dissenting coalitions 1991–2020 (SloCC) 290
12.1 Average strength and proportion of restraining rulings (CEE) 299
12.2 Average strength of rulings (CEE vs. WE) 300
12.3 Cumulative ratio of the two most frequent provision types
(REJ + SUBST) 300
12.4 Frequency of ruling types (all countries) 301
12.5 Rulings with at least one dissenting opinion (CEE vs. WE) 302
12.6 Average strength of rulings (1990–2020) (CrCC; HCC;
SCC; SloCC) 312
 Figures ix

12.7 Average strength of rulings (1990–2020) (ESC; PCT; RCC) 312

12.8 Average strength of rulings (1990–2020) (CzCC; LaCC; LiCC) 313
12.9 Proportion of rulings with at least one dissenting opinion
(1990–2020) (CzCC; LiCC; SloCC) 316
12.10 Proportion of rulings with at least one dissenting opinion
(1990–2020) (CrCC; PCC) 317
12.11 Proportion of rulings with at least one dissenting opinion
(1990–2020) (ESC; HCC; LaCC; RCC; SCC) 318
Tables

1.1 Components and elements of rulings 11

1.2 Possible combination of the elements of judicial rulings 17
1.3 Weighting of the elements of rulings 19
2.1 Number of dissenting opinions per judges 50
3.1 Caseload of the Czech Constitutional Court (1993–2020) 67
3.2 Professional background of the judges (CzCC) 77
4.1 Number of decisions and rulings (ESC) 92
5.1 Distribution of RLCs by electoral cycles (HCC) 134
5.2 Modified attitudinal model of judicial behaviour by
dominant policy fields (HCC) 137
7.1 Three periods of the LiCC 176
10.1 The SCC’s and the Slovak executive’s terms in office 247
10.2 Selected basic information about the judges of the
“fourth SCC” 249
10.3 Selected statistics of SCC petitions and decisions 256
12.1 Number of decisions, rulings, and dissenting opinions
(all countries) 297
12.2 Proportion of rulings with at least one dissenting opinion
(all countries) 302
Abbreviations

CrCC: Croatian Constitutional Court

CzCC: Czech Constitutional Court
ESC: Estonian Supreme Court
HCC: Hungarian Constitutional Court
LaCC: Latvian Constitutional Court
LiCC: Lithuanian Constitutional Court
PCT: Polish Constitutional Tribunal
RCC: Romanian Constitutional Court
SCC: Slovak Constitutional Court
SloCC: Slovenian Constitutional Court
Contributors

Polona Batagelj is an assistant at the European Faculty of Law New Univer-

sity, where she earned her Ph.D. She was a member of the research group
on a project titled Ideology at Courts: The Influence of Judges’ World-views on
Their Decisions, focusing on how the ideological profiles of judges influence
their performance. As part of this research, she co-authored various chap-
ters in the recently published scientific monograph, Ideologija na sodiščih
(Avbelj, Matej, et al. 2021. Nova Gorica: Nova univerza). Her research
interests focus on European Union Law and sports law with a recent pub-
lication: “Reforms of the anti-doping system in the light of (better) protec-
tion of the athletes’ human rights” (Dignitas 2021 (89/90): 145–184).
Márton Csapodi is a Ph.D. student at the Faculty of Law and Political Sci-
ences of the Pázmány Péter Catholic University and a research fellow at
the Center for Constitutional Politics of the Mathias Corvinus Collegium.
He obtained his master’s degree in law from the Pázmány Péter Catholic
University. He is currently doing research on constitutional adjudication,
constitutional pluralism, and constitutional judiciaries in the EU.
Gábor Dobos is a research fellow at the Centre for Social Sciences (Budapest)
and at the Ludovika University of Public Service (Budapest). He is primarily
interested in local politics and constitutional adjudication. His latest publi-
cations include: “Do Constitutional Courts Restrict Government Policy?”
in East European Politics 39 (3), 2022 (with Kálmán Pócza, Attila Gyulai,
and Zsófia Papp); “Hungary: The expansion and the limits of national poli-
tics at the local level” in Gendźwiłł A. et al. (eds.) The Routledge Handbook
of Local Elections and Voting in Europe. Routledge, 2022; and “Municipal
splits and hidden amalgamations in Hungary” in Miscellanea Geographica –
Regional Studies on Development, 25 (2), 2021.
Monika Glavina is an assistant professor of European Union Law at Eras-
mus School of Law, Erasmus University Rotterdam, and a visiting professor
at Paris School of International Affairs, Sciences Po. In addition, she is a
member of the Editorial Board of Erasmus Law Review and a member of
the Steering Committee of the ECPR Law and Courts Standing Group.
 Contributors xiii

She obtained her Ph.D. at KU Leuven University and worked as a post-

doc on two large-scale projects: the ERC-granted EUTHORITY Project
(KU Leuven) and the Horizon-2020 TiGRE Project (University of Ant-
werp). Her areas of research include empirical legal research, judicial poli-
tics, judicial behaviour, judicial protection in the EU, and trust in courts.
Her most recent publications include: “Why passive? Exploring national
judges’ motives for not requesting preliminary rulings” (with Karin Leijon,
in Maastricht Journal of European and Comparative Law); “The Reality of
National Judges as EU Law Judges: Knowledge, Experiences and Attitudes
of Lower Court Judges in Slovenia and Croatia” (in Croatian Yearbook
of European Law & Policy); and “The Voices of European Law: Legisla-
tors, Judges and Law Professors” (with Arthur Dyevre and Michal Ovádek,
in German Law Journal).
Attila Gyulai is a senior research fellow at the Centre for Social Sciences –
Institute for Political Science (TK PTI) in Budapest and an associate profes-
sor at the Corvinus University of Budapest. He is the principal investigator
of the “Political Normativity” project at TK PTI. His most recent publica-
tions include: “Do Constitutional Courts Restrict Government Policy?” in
East European Politics 39 (3), 2022 (with Kálmán Pócza, Gábor Dobos and
Zsófia Papp); The Orbán regime: Plebiscitary leader democracy in the making
(Routledge, 2020, with András Körösényi and Gábor Illés); “It’s a fact: the
buribunks are the enemies of the political” in Griffith Law Review 28 (2),
2019; and “How to Measure the Strength of Judicial Decisions: A Meth-
odological Framework” in German Law Journal 18 (2017):6 (together
with Gábor Dobos and Kálmán Pócza).
Iga Jeziorska is an assistant professor the Corvinus University of Budapest.
Her research interests focus on illicit drug policies and the role of non-
governmental organizations in public service delivery in this area. Her most
recent publications include: “A Sin or a Health Issue? Morality Policy Fram-
ing and the State of Harm Reduction in East-Central Europe” in Intersec-
tions 7(1):97; “Collaborative Governance Regimes in Illiberal Democracies:
A Comparative Case of Drug Harm Reduction Policy in Central-Eastern
Europe” in Transylvanian Review of Administrative Sciences 62 E/2021
(62 E):60; and “Understanding drivers of illiberal entrenchment at critical
junctures: institutional responses to COVID-19 in Hungary and Poland”
in International Review of Administrative Sciences 87(3).
Alžbeta Králová is an assistant professor at the Department of Constitutional
Law and Political Sciences of the Faculty of Law of Masaryk University in
Brno. Her research interests focus on human rights, asylum and migra-
tion law, effective remedies, judicial review, and constitutional adjudica-
tion. She participated in projects related to the application of EU law by
national courts and the influence of EU law on the system of remedies in
asylum and migration law. She headed the Department of Analytics and
xiv Contributors

Comparative Law of the Supreme Court of the Czech Republic and works
for the Ombudsman´s Office. Her publications include “Legal Remedies
in Asylum and Immigration Law: The Balance Between Effectiveness
and Procedural Autonomy?” in Central European Public Administration
Review (2018).
Csongor Kuti is an associate professor at the University of Arts Târgu-Mureş,
Romania. SJD in comparative constituţional law and LL.M. in human
rights, both obtained at the Central European University, Budapest. His
latest publications include: Five Essays on the Freedom of Speech (2020);
“Between a Rock and a Hard Place: Constituţional Conflict Cases before
the Romanian Constituţional Court” in Hungarian Journal of Legal Stud-
ies 60(3), 2019; and “The Romanian Constitutional Court: Muddling
Through Democratic Transition” in Constitutional Politics and the Judici-
ary: Decision-making in Central and Eastern Europe (London/New York:
Routledge, 2019, ed.: Kálmán Pócza).
Erik Láštic is an associate professor at the Department of Political Science,
Faculty of Arts at the Comenius University in Bratislava, Slovakia. His
research focuses on various aspects of politics and policymaking in Cen-
tral and Eastern Europe, including legislative politics and referendums. He
has published dozens of articles and chapters domestically and internation-
ally. Selected publications include: “Into the Labyrinth: The Rewards for
High Public Office in Slovakia” (with Katarína Staroňová) in B. Guy Peters,
Marleen Brans (eds.): Rewards for High Public Office in Europe and North
America (London: Routledge, 2012) and “If It Works, Fine, If Not, So
What? Initiatives in Slovakia” in Maija Setälä and Theo Schiller (eds.): Citi-
zens’ Initiatives in Europe: Procedures and Consequences of Agenda-Setting
by Citizens (2012).
Dita Plepa studied law at the University of Latvia. In 2011 she was awarded a
master’s degree in law. Her research focuses on constitutional law and state
law, as well as issues of legal theory. Currently, she is a doctoral student at
the University of Latvia, Faculty of Law. In 2008 she started working as
the senior desk officer with the Department of the Court of Justice of the
European Union, Ministry of Justice of the Republic of Latvia. Since 2009
she has been working at the Constitutional Court of the Republic of Latvia.
In addition to this, since 2012 she has started teaching “Legal Methods” at
the Faculty of Law, Riga Stradins University.
Kálmán Pócza is a senior research fellow at the Ludovika University of Public
Service in Budapest (Research Institute for Government and Politics) and
Head of the Center for Constitutional Politics at the Mathias Corvinus
Collegium. He is the Principal Investigator of the JUDICON-EU pro-
ject. Previously, he was a senior research fellow at the Institute for Politi-
cal Science of the Hungarian Academy of Sciences, Associate Professor at
the Pázmány Péter Catholic University, and visiting research fellow at the
 Contributors xv

University of Notre Dame, University of Tübingen, and the University

of Fribourg. His most recent publications include: “Do Constitutional
Courts Restrict Government Policy?” in East European Politics 39 (3),
2022 (together with Gábor Dobos, Attila Gyulai, and Zsófia Papp); Con-
stitutional Politics and the Judiciary: Decision-making in Central and
Eastern Europe (London/New York: Routledge, 2019, editor); and
“How to Measure the Strength of Judicial Decisions: A Methodological
Framework” in German Law Journal 18(2017):6 (together with Gábor
Dobos and Attila Gyulai).
Dovilė Pūraitė-Andrikienė is a senior researcher at the Law Institute of the
Lithuanian Centre for Social Sciences and the Head of the Legal System
Research Department of this Institute. She is an expert on Lithuanian
and comparative constitutional law, constitutional justice procedure, and
human rights. Her most recent publications include: Legal Protection of
Vulnerable Groups in Lithuania, Latvia, Estonia, and Poland (2022, edi-
tor and co-authored with Agnė Limantė); “Individual constitutional com-
plaints in Lithuania: an effective remedy to be exhausted before applying
to the European Court of Human Rights?” in Baltic Journal of Law &
Politics No. 15, Issue 1 (2022); Constitutional Complaints in Lithuania as
a Tool for the Protection of Human Rights: monograph (2022); “The Devel-
opment and Prospects of the Lithuanian Constitutional Justice Model” in
Švedas. G.; Murauskas, D. (eds.), Legal Developments During 30 Years of
Lithuanian Independence (2021); and “The Legal Force of Conclusions by
Lithuanian Constitutional Court and the issue of their (Non-)finality: Has
the Time Come to Amend the Constitution?” in Review of Central and
East European Law No. 44, Issue 2(2019). She is also an associate professor
at the Faculty of Law of Vilnius University, where she teaches constitutional
law and European Union law. She is also a member of the Young Academy
of Lithuanian Academy of Sciences.
Anita Rodiņa is currently judge at the Latvian Constitutional Court and
an associate professor at the University of Latvia. Before being elected to
the bench of the Constitutional Court of Latvia she was Dean of the Law
Faculty and a member of the senate at the University of Latvia. She has
been a member of the Committee for Improvement of the Legal Envi-
ronment established at the State President’s office. She is active in several
international platforms like the European Public Law Organization; she is
a founder of the public analytical centre “Constitutional Culture” and a
member of scientific committees of legal journals abroad. At the Faculty of
Law, she teaches constitutional law and constitutional court procedure law.
Her most recent publications include: “Protection of Fundamental Human
Rights during COVID-19 Pandemic: Case of Latvia” in International
Organizations and State’s Response to COVID-19 (2021); “Appointment
of the Constitutional Court Justice: Some Issues” in Law, No. 14, 2021;
Le e-Saeima, l’un des premiers parlements au monde a travailler a distance.
xvi Contributors

L’impact de la crise sanitaire sur le fonctionnement des parlements ne Europe

(Fondation Robert Schuman, 2021; together with I. Lībiņa-Eggnere);
“Foreign Materials in the Judgments of the Constitutional Court of the
Republic of Latvia” in Judicial Cosmopolitanism. The Use of Foreign Law
in Contemporary Constitutional Systems (2019); and “The Constitutional
Court of the Republic of Latvia as a Law Maker: Current Practice” in Judi-
cial Law-Making in European Constitutional Courts (London, New York:
Routledge 2020, together with A. Spale).
Katarína Šipulová is the Director of the Judicial Studies Institute at
Masaryk University’s Faculty of Law. She earned her Ph.D. at the Faculty
of Social Studies, Department of European Studies, Masaryk University,
Brno, and the MSt in Socio-Legal Research at the University of Oxford.
Her main areas of interest are judicial governance, transitional justice, and
democratization of the Central and Eastern European countries. She has
been an active member of several research projects dealing with human
rights as well as international law and its impact on domestic jurispru-
dence (e.g. international human rights treaties in national legal systems,
implementation of ECtHR case law against the Czech Republic), includ-
ing both ERC research grants led by David Kosař. She serves as a mem-
ber of the ECPR Law and Courts Standing Group Steering Committee
(2018–now), the ICON-S CEE Chapter (2018–now), and the Oxford
Global Society (2021–now). Her latest publications include: “Compara-
tive Court-Packing” (International Journal of Constitutional Law, with
D. Kosař); “Judicial Self-Governance Index: Towards Better Understand-
ing of the Role of Judges in Governing the Judiciary” (Regulation and
Governance, with S. Spáč, D. Kosař, T. Papoušková and V. Derka); and
“Between Human Rights and Transitional Justice: The Dilemma of Con-
stitutional Courts in Post-Communist Central Europe” (Europe-Asia
Studies, with H. Smekal).
Max Steuer is an assistant professor at the Department of Political Science,
Faculty of Arts at the Comenius University in Bratislava, Slovakia, and an
associate professor at the Jindal Global Law School, O.P. Jindal Global Uni-
versity, India. His research interests focus on questions of democracy pro-
tection, constitutional adjudication in Central Europe, constitutionalism
in the European Union, and freedom of expression. His interdisciplinary
work has appeared in edited collections and encyclopaedias and in jour-
nals in political science, law, sociology, and European studies including:
European Constitutional Law Review, The International Journal of Human
Rights, and Review of Central and East European Law. A member of sev-
eral academic associations in political science and public law, such as the
International Society of Public Law and its Central and Eastern European
Chapter (Founding Advisory Board), he received several academic awards,
including a Fulbright Graduate Scholarship.
 Contributors xvii

Paloma Krõõt Tupay teaches constitutional law at the University of Tartu

in Estonia. In addition to questions of democratic state architecture, she
focuses her research activities on issues of data protection, e-government,
and digital constitutionalism. Early in 2023, Artificial Intelligence and
Machine Learning Powered Public Service Delivery in Estonia. Opportuni-
ties and Legal Challenges, a book she co-authored with Martin Ebers, was
published. Currently, she is working on the completion of a constitutional
law textbook. Previously, she has worked as a legal advisor to the Estonian
President and also to the Minister of Interior. Recent publications include:
“Has the GDPR killed e-government? The ‘once-only’ principle vs. the
principle of purpose limitation” in International Data Privacy Law 2023
(together with Monika Mikiver) and “Estonia, the Digital Nation: Reflec-
tions on a Digital Citizen’s Rights in the European Union” in European
Data Protection Law Review, 6 (2) 2020, 294−300.
Artur Wołek is a public policy and administration professor and former vice-
rector at the Jesuit University of Krakow Ignatianum. Previously he taught
at the Warsaw School of Economics and WSB-National-Louis University.
In the 1990s, he also worked as an advisor with the Prime Minister’s Office
for Constitutional Reform and as the director at the Windsor Group, a
think tank. Books authored include: Słabe państwo [A Weak State] (2012)
and Demokracja nieformalna. Konstytucjonalizm i rzeczywiste reguły poli-
tyki w Europie Środkowej po 1989 r. [Informal Politics. Constitutionalism
and Effective Rules of Politics in Central Europe] (2002). He also edited a
major handbook Public Policies (2021); Nieodrobiona lekcja. Polityki pub-
liczne w Czechach i Polsce [The Lesson Not Done. Public Policies in Poland
and the Czech Republic] with Ondřej Krutílek (2013) and Udana transfor-
macja na peryferiach? [Successful Transformation on the Peripheries?] with
Justinas Dementavičius (2013).
1 Constitutional review and
judicial-legislative relations
in new democracies
Kálmán Pócza, Márton Csapodi, Gábor Dobos
and Attila Gyulai

1.1 Introduction: taking courts seriously

The least dangerous branch. No purse, no sword. According to the classical
and well-known narratives of the two Alexanders, Hamilton in The Federalist
No. 78 and, following in his footsteps, Bickel (1962), the judiciary is definitely
a harmless institution, which might have authority (auctoritas) but whose
power (potestas) depends on the other two branches of government, which
possess the purse and the sword. Consequently, Hamilton argued, no one
should fear the judicial power; it should be rather considered “as the bulwark
of a limited Constitution against legislative encroachments”.
Judicial supremacy, rule of judges, and juristocracy. Over the past four
decades, these terms, referring to recently emerging phenomena, have been
used either simply analytically or critically by several authors arguing against
the global expansion of judicial power. The central points of criticism are the
legitimacy deficit, the problem of the counter-majoritarian difficulty, and the
recurring charge of judicial activism (to refer once again to terms widely used
in legal scholarship).
While arguments against judicial review were formulated in the United
States quite early, the flip side of the story was less well known in Europe for
several decades. Criticism in the US and Europe had its origins in political
conflicts that arose in the wake of highly contested decisions of constitutional
courts, but scholarly reflections that normatively (and plausibly) argued against
the expansion of judicial power were absent not only in Central and Eastern
Europe (CEE) but, with the obvious exception of the United Kingdom, also
in Western Europe, where constitutional courts became crucial political actors
after two waves of democratization.
Constitutional courts in Western Europe, originally established either as
bulwarks against the violation of fundamental rights or (more often) to settle
disputes between different levels of government in federal states, have slowly
but steadily moved to the centre stage of domestic politics. They faced only
occasional backlashes because judges displayed passive virtues (again, explained
in detail by Alexander Bickel), because no politicians dared to challenge the
institutions created as bulwarks against totalitarianism or simply because they

DOI: 10.4324/9781003399483-1
2 Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai

were sometimes regarded as useful institutions to which politicians could turn

to have judges decide thorny questions with potentially disastrous political
consequences for elected politicians (a special kind of blame shifting).
At first glance, the story in Central and Eastern Europe began similarly,
or more precisely, even more promisingly. In contrast to Western Europe –
where constitutional courts played a decisive role only in countries with an
authoritarian past and the “judicialization of mega-political issues” (Hirschl
2008) was almost completely absent in the UK, the Benelux countries, and
the Scandinavian countries – judicial review of legislative and executive acts
was established in all countries of the CEE region without exception. Copy-
ing a template (Parau 2018) and giving judges more power seemed like a
good idea, because no one really expected a rebellion against governing by the
judiciary (Scheppele 2003). In fact, the first constitutional courts established
their authority surprisingly quickly, and since politicians in Central and Eastern
Europe were hardly aware of the potential power of judicial review, consti-
tutional adjudication based on judicial review became a success story that is
proudly referred to in legal scholarship.
However, from today’s perspective and with the hindsight of new genera-
tions, one could say that the picture in the CEE region is rather mixed. While
some courts in Central and Eastern Europe managed to avoid massive political
interference in their work and preserved their relative independence (e.g. the
Czech Constitutional Court), others faced either milder forms of pushback
or serious backlashes (Madsen, Cebulak, and Wiebusch 2018) from politi-
cal actors who claimed that judges (and not elected politicians) govern their
country. Several political actors have argued that constitutional courts have
assumed too much power and that politics has been extremely judicialized.
Political actions against courts in the CEE region have ranged from verbal
criticism of judicial decisions and constitutional courts in general to (un)suc-
cessful attempts of court-packing and a total reshuffle of the court, showing
that politicians took the courts seriously as centres of power that can signifi-
cantly hinder them achieving their goals.

1.2 The research puzzle

Nevertheless, the question as to what extent this aggregation of power and
authority has constrained the dominant political actors, in fact, has never been
examined accurately and systematically in the literature. The twin volumes,
Constitutional Review in Central and Eastern Europe and Constitutional
Review in Western Europe, are trying to fill this gap in the literature and deal
with the practice of constitutional adjudication in Europe, mainly focusing on
the puzzling relationship between constitutional courts and legislatures.
It should be stressed, however, that these volumes do not concentrate
either on the theory of judicial or legislative supremacy or on institutional
design, which of course can affect both constitutional adjudication and the
relationship between these institutions. Moreover, they deliberately avoid
philosophical questions about the legitimacy of judicial review, and their main
 Constitutional review and judicial-legislative relations 3

approach is certainly not in line with classical works of (European) legal schol-
arship. They do not aim to find an answer to the question of supremacy, nor
do they approach the question of the relationship between the judiciary and
the legislature from a purely legalistic point of view. Instead of philosophical,
theoretical, and purely legal questions, we have chosen to explore empirically
and systematically the practice of constitutional adjudication in Europe, with
particular attention to the diversity of judicial decisions and the strength of the
constraint they exert on legislatures. Thus, this work is more in the realm of
empirical legal research, which has a rich tradition in American legal research
but is relatively unknown in the European context.1

1.3 The research questions

Both volumes, Constitutional Review in Central and Eastern Europe and
Constitutional Review in Western Europe, are products of the JUDICON-EU
research project.2 The project formulated two aims: first, we developed a new
methodology to capture diversity and measure the strength of judicial deci-
sions. Second, based on this coherent methodology and the database created
by the project, we studied the diversity and strength of judicial decisions of the
European constitutional courts. Based on these objectives, we formulated two
research questions concerning the diversity and strength of judicial decisions:
(1) how differentiated are the decisions of European constitutional courts?;
and (2) to what extent have these differentiated decisions of European consti-
tutional courts constrained the legislature’s room for manoeuvre?
Based on the analysis of the practice of the Hungarian Constitutional Court,
we assumed that other European constitutional courts also elaborated (or
adopted from the practice of their counterparts) a variety of ruling types and
declared legislative omissions or procedural unconstitutionality, complete or
partial, ex tunc or pro futuro annulments, determined constitutional require-
ments or prescriptions how to remedy the unconstitutionality. Mapping this
diversity of judicial decisions is one of the main aims of both volumes.
Although in legal terminology the strength of a judicial decision seems
to be a concept rather difficult to interpret, strength as used in this research

1 It should be stressed, however, that most recently several initiatives have been launched which
indicate that the field of empirical legal studies is getting more and more popular even in
Europe. The first and the second Conference on Empirical Legal Studies in Europe held in
Amsterdam (2016) and in Leuven (2018), as well as the activity of Law and Court Standing
Group of the European Consortium of Political Research (ECPR), along with several research
projects at various European Universities like JUSTIN (Masaryk University Brno), ICOURTS
(University of Copenhagen), or PLURICOURTS (University of Oslo) are excellent examples
which demonstrate that various methods of empirical legal studies are nowadays more wide-
spread in the European research community than a few years ago.
2 The JUDICON-EU research project (2020–2022) has been funded by the Ludovika Univer-
sity of Public Service. For more details: https://judiconeu.uni-nke.hu/. We are indebted to all
interns of the project and especially to Adrienn Vajda, who helped us in editing all figures and
tables of the volume.
4 Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai

project shows the extent to which constitutional courts constrain the room for
manoeuvre of another constitutional organ (in this research project, the legisla-
tures). While all decisions of a constitutional court have the same legal binding
force, they may reduce the scope of legislative activities to varying degrees. For
example, in cases described as procedural unconstitutionality, legislatures made
“only” a procedural mistake in the adaptation of the bill. After having corrected
this procedural flaw of the legislative process, they might adopt the same law,
often even with the same content. On the other hand, in cases of substantive
unconstitutionality, the regulation should be changed substantively, i.e. its con-
tent should be transformed to meet the constitutionality criteria. In the second
case, constitutional courts significantly narrow down the scope of legislative
activities, since the court has found the content, rather than the way the bill
was adopted, unconstitutional. Consequently, a decision based on substantive
unconstitutionality is stronger than one based on procedural unconstitutional-
ity because it might limit the legislature’s room for manoeuvre more heavily.
It is important to note that by measuring the strength of judicial decisions,
on no account do we want to measure the impact of judicial decisions. The
term strength as used in our research might be best described with a boxing
metaphor: measuring strength is measuring the power of a punch, and by no
means the kind of impact this punch had on the other boxer. It is not consid-
ered whether this opponent could have side-stepped or is only slightly shaken,
although it was a very strong punch. To put it briefly, strength is not measured
by the intensity of the impact of a decision.
In what follows, we first briefly give an overview on the existing literature
on constitutional review in Central and Eastern Europe, focusing on judicial-
legislative relations (Section 1.4). Second, we summarize the methodology
of the JUDICON-EU research project, which is essential for understanding
the country studies included in both volumes (Section 1.5). Third, we clarify
the structure of the country studies since we asked the authors to follow the
same coherent structure in writing the chapters (Section 1.6). In addition to
the coherent methodology of the research project, the semi-structured chap-
ters based on predefined questions facilitate the comparison of the perfor-
mance of European constitutional courts with regard the question of their
constraint on the legislature. Nonetheless, we have also included a special
comparative chapter at the end of both volumes that attempts to provide a
first (and rather preliminary) answer to the question of whether institutional
design, political context, or event-related variables influence the strength of
court decisions or dissenting opinions.

1.4 Literature overview

1.4.1 Institutional design

There is an extensive literature on the development and origins of the insti-

tutional design of European constitutional review, with a significant body of
research on Central and Eastern European countries’ constitutional design,
 Constitutional review and judicial-legislative relations 5

including comparative analysis of institutional patterns, origins, and evolution

of constitutional courts in post-communist countries established during the
democratic transition (Brunner 1992; Utter and Lundsgaard 1993; Magal-
hães 1999; Smithey and Ishiyama 2000; Procházka 2002; De Visser 2014;
Ernits et al. 2022). In this context, Sadurski’s work is particularly significant
(Sadurski 2002, 2014). While Schwartz has also conducted extensive histori-
cal and comparative research in this field (Schwartz 1992, 1998, 2000), Parau
provides a comparative analysis of the institutional pattern and the circum-
stances surrounding the emergence of constitutional judiciaries in CEE from a
specific political science perspective, seeing the empowerment of judges as the
self-empowerment of transnational elites (Parau 2018).
One prominent approach to studying the activity and functioning of consti-
tutional courts is from the perspective of federalism, political centralization, or
decentralization. In addition to single-country studies (Benz 2017; Dalla Pel-
legrina et al. 2017; Popelier and Bielen 2019), Vaubel’s cross-country research,
including European countries, examines how specific features of constitutional
adjudication, such as the degree of independence, difficulty of amending the
constitution, and length of time a constitutional court has been in existence,
relate to the degree of political centralization (Vaubel 2009). Popelier et al.
(2013) also analysed the effects of judicial decisions in time.

1.4.2 External factors: the political context

Some examine the functioning of constitutional justice in the light of contex-

tual, external factors. For example, Hönnige argued that judges make decisions
according to their political preferences and that this can be measured by party
affiliation (although the investigation covered two constitutional courts from
Western Europe, not from CEE) (Hönnige 2009). This somewhat nuances
the picture that European constitutional jurisprudence is not (or is much less)
politicized than in the US (Forejohn and Pasquino 2004). Hein and Ewert
used quantitative methods to investigate the extent to which European consti-
tutional courts may be politicized in three countries (Germany, Bulgaria, Por-
tugal) and concluded that the type of procedure has a strong influence on the
degree of politicization (the extent to which extra-legal considerations play a
role in the decision). For example, abstract review is more likely to be politicized
than individual constitutional complaints (Hein and Ewert 2016). Garoupa and
Ginsburg have examined how judges respond to different “audiences” (e.g.
the public, politicians, lawyers) in terms of reputation (Garoupa and Ginsburg
2015) and how the presence of a supreme court coexisting with a Kelsenian-
style constitutional judiciary might affect the internal fragmentation of the con-
stitutional court (Garoupa and Ginsburg 2011). Garlicki has also analysed the
power dynamics and tensions between centralized constitutional courts and co-
existing supreme courts from a comparative perspective (Garlicki 2007).
Vanberg classified the contextual factors of the political system that
lead to the preservation of the authority of constitutional courts into two
groups according to whether the court’s authority benefits policy-makers
6 Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai

(endogenous explanation) or would only come at a too high price if it were

undermined or eroded (exogenous explanation) (Vanberg 2015). Based on
the German Federal Constitutional Court, Vanberg used a combination of
quantitative and qualitative methods to investigate the impact of political fac-
tors such as transparency and public support on the decisions of constitu-
tional courts. He found, for example, that low levels of transparency (e.g.
lack of public attention, complexity of the case) reduce the likelihood of a
law being annulled (Vanberg 2004). Bricker and Wondreys (2018) examined
the relationship between public opinion and constitutional review through
a quantified analysis of opposition-initiated constitutional court decisions in
four countries (Germany, Poland, Slovenia, Czech Republic) and concluded
that it may not be possible to see constitutional courts as exclusively counter-
majoritarian institutions. Indeed, their results show that constitutional courts
are responsive to changes in public preferences. Public preferences can change
over the course of a term, or they can support the opposition in specific policy
areas, and a constitutional court can be receptive to public opinion and shape
public policy accordingly (Bricker and Wondreys 2018). Garoupa argues that,
overall, empirical research on constitutional review clearly points in the direc-
tion of constitutional courts being politicized in the sense that the behaviour
of judges can be predicted along ideological lines, while other contextual fac-
tors can also be identified (Garoupa 2019). Herron and Randazzo (2003)
conclude, in the context of post-communist constitutional courts, that the
formal strength of judicial review is less, and external circumstances (e.g. eco-
nomic situation) are more influential on judges’ decision to overturn legisla-
tion (Herron and Randazzo 2003).
However, based on his quantitative analysis of post-communist consti-
tutional courts, Bumin (2017) concluded that for the activism of judicial
review, the institutional development of the court seems more determining
than external factors, although his results also showed correlation between the
activism of the constitutional court and the political system or even the eco-
nomic situation. Bumin quantified the extent of judicial activism by compiling
data on the constitutional court’s jurisprudence in 19 post-communist coun-
tries, looking only at the “on the merits” decisions and the constitutionality-
unconstitutionality dichotomy in the outcome of the decision (Bumin 2017).
Taking the Bulgarian Constitutional Court as a case study, Bagashka and
Tiede examined the influence that the attorney general, alongside other politi-
cal actors, can have on the constitutional court’s decision-making (Bagashka
and Tiede 2021). External factors influencing constitutional jurisprudence can
also include decisions of other countries’ constitutional courts, and there is
empirical research (combining qualitative and quantitative methods) in the
literature on the extent to which European countries use decisions of foreign
courts in their own practice (Groppi and Ponthoreau 2013).
A special aspect of research on constitutional adjudication in Central and
Eastern Europe is often the role of constitutional review in the democratic
transition and in strengthening and maintaining democracy (Epstein, Knight,
 Constitutional review and judicial-legislative relations 7

and Shvetsova 2001; Jovanović 2015). Although by no means exclusively in

the context of the post-communist region, but from a global perspective, Daly
has done extensive work exploring the role courts play in democratization,
encouraging to rethink what tasks we entrust to the courts in the process
of democracy building (Daly 2017). However, constitutional review is now
being examined not only in the context of building, but also in the context of
dismantling democracy: most recently, one can find studies on Hungary and
Poland that aim to examine the role of constitutional courts in so-called illib-
eral political regimes, often claiming that the political branches of power are
abusive towards the constitutional judiciary (Castillo-Ortiz 2019; Drinóczi
and Bień-Kacała 2019; Dixon and Landau 2021; Kovalčík 2022).

1.4.3 Internal dynamics: dissents

Some studies focus on the internal dynamics of constitutional courts, which,

due to institutional design, means examination of judicial dissents where pos-
sible. Kelemen has done extensive comparative work on the use of dissents in
European constitutional review (Kelemen 2013, 2018). Hein and Ewert have
used quantitative analysis based on the dissenting ratio of constitutional court
decisions in order to investigate the extent to which decisions are politicized
(Hein and Ewert 2016). Bricker has carried out a large-scale study combin-
ing qualitative and quantitative methods for the German and some Eastern
European (Poland, Latvia, Slovenia, Czech Republic) constitutional courts.
His research was twofold: on the one hand, he investigated the influence of
various contextual factors on the tendency of a constitutional judge to issue a
dissenting opinion, and on the other hand, he examined the impact of dissent-
ing opinions on the quality of the resulting decision (Bricker 2017).
Related to internal dynamics, a separate empirical research area is the study
of constitutional court reasoning from a comparative perspective. Jakab,
Dyevre, and Itzcovich (2017) have made a serious attempt at a comprehensive
comparative mapping of constitutional court reasoning, using both qualitative
and quantitative methods based on “leading judgments” drawn from selected
countries (Jakab, Dyevre, and Itzcovich 2017).

1.4.4 Judicial-legislative relations

By focusing more closely on the research question of the present volume, we

find that a long-established type of qualitative approach is examining the impact
of constitutional courts on the policy-making process and policy-outcome. It
thus already relates to the relationship and dynamics of constitutional review
and the legislature, although there is also research that seeks to measure spe-
cifically the impact of constitutional review on the quality of policy outcome
(Feld and Voigt 2003).
In terms of the relationship between constitutional review and the legisla-
ture, earlier literature naturally focuses on Western Europe (most prominently
8 Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai

the work of Stone Sweet from the perspective of comparative judicial poli-
tics) (Stone Sweet 1990). Regarding the dynamics of constitutional review
and legislature, he identified the constitutional judiciary as the third legislative
chamber, with regard to both institutional design and empirical experience in
specific policy areas (Shapiro and Stone 1994). Stone Sweet has concluded
that the entry of constitutional review into the legislative process has caused
the death of the legislative sovereignty, with governance taking place alongside
or in competition with judges (Stone Sweet 2002, 2012).
Brewer-Carías also finds in his comprehensive comparative work based
on national reports of European (and non-European) countries that consti-
tutional courts have acquired a role that is most closely associated with the
legislature or the constituent power (Brewer-Carías 2011). Taking the “con-
stitutional courts as legislators” approach as a starting point, Florczak-Wątor
has edited a volume of studies on the law-making activities of constitutional
courts in Western European and Central and Eastern European countries
(Florczak-Wątor 2020). Sadurski addressed the impact of the constitutional
courts in CEE countries on the legislative process, approaching the strength
of constitutional court decisions by examining the structure of the legislative
process, suggesting that some features of this process (e.g. political fragmenta-
tion) are decisive for the degree of conflict between the constitutional courts
and the legislature (Sadurski 2014).
The concept of a “veto player” has also emerged in the context of a game-
theory-based conceptualization of the role of constitutional review in legis-
lation. Although the term was first introduced in the context of studies on
Western European courts, as a general theorization of constitutional review,
it is also worth mentioning in the context of CEE countries. Volcansek pro-
posed this approach based on the Italian Constitutional Court’s jurisprudence
(Volcansek 2001), later Hönnige and Brouard nuanced the picture, if not on
the Italian, but on the role of the French and German constitutional courts.
Using quantitative methods, they concluded that they play the role of a veto
player only under certain conditions, and their role may be influenced by, for
example, the legislative procedure or the ideological composition of the court
(Brouard and Hönnige 2017). However, Tsebelis, for example, did not count
(constitutional) judges as veto players (because they are absorbed by other
political veto players) but added that they could be included in this role under
certain conditions (Tsebelis 2002).
Lijphart conceptualized judicial review as part of a “consensus model of
democracy” and also attempted to group 36 countries of the world (includ-
ing a significant proportion of Western European countries) according to the
strength of judicial review. He sets up four groups, the first group compris-
ing those lacking judicial review. Those with judicial review are classified by
Lijphart into “strong”, “medium-strength”, or “weak” categories based on the
“degrees of activism in the assertion of this power” (Lijphart 2012). Vanberg
used game-theory analysis to conceptualize the relationship between abstract
judicial review and legislation, how different judicial behaviours influence the
 Constitutional review and judicial-legislative relations 9

behaviour of the legislative majority, while the latter aims to ensure that legis-
lation passes abstract review or that the opposition does not initiate the review
process. Vanberg’s results show that abstract review fits Lijphart’s model of
consensus democracy only when the court is not overly deferential. If it is
somewhat restrictive, then legislative self-limitation is directed towards avoid-
ing nullification by the constitutional review process, but if it is very restrictive,
self-limitation means taking into account the opposition’s viewpoint in order
to avoid them initiating the review (Vanberg 1998).
In terms of the literature of empirical research on European constitutional
courts, the parallel work of legal and political science is clearly visible, which,
according to Garoupa, has moved closer together than the rigid separation
that existed before. Garoupa has also systematized the English-language lit-
erature using quantitative methods in research on constitutional courts, most
of them of course being single-country studies (Garoupa 2020). Garoupa and
Bagashka draw attention to three prominent difficulties with empirical research
on constitutional courts: the first is the availability (and processing, coding) of
data; the second is the openness of the constitutional law scholarly community
in this direction; and the third is the fact that such empirical research is not
always popular with constitutional courts (Garoupa and Bagashka 2021).
Given that existing literature has not elaborated a consistent methodology
for comparing the performance of constitutional courts, the JUDICON-EU
research project developed a methodological framework for measuring the
strength of constitutional court decisions and for mapping the relationship
between constitutional courts and the legislature. In the next section, we
describe this new methodology, which served as the analytical framework for
all country studies in this volume.

1.5 Research methodology

A constitutional court decision is a complex piece of judicial text which can-
not be quantified unless disaggregated into smaller yet distinct and meaning-
ful units. Neglecting the fact that one judicial decision frequently consists of
several rulings might seriously distort any kind of empirical legal research since
this leads to an unjustified and unacceptable aggregation of units of observa-
tions. A decision issued under a single identification number consists of one
or more rulings, references to various legal documents (laws, earlier decisions
issued by lower courts, etc.), and a more or less detailed justification. Within
the same decision one ruling might reject a motion dealing with certain legal
regulations while another ruling in the same decision might declare uncon-
stitutional some other parts of the same (or another) legal regulation. The
decision of the court might also contain a ruling that declares an ex nunc pro-
cedural unconstitutionality annulling a whole law, while another ruling of the
same decision declares ex tunc substantial unconstitutionality of a paragraph of
a different legislative act. Added to these, decisions might be supplemented by
dissenting opinions if judges disagree with the majority of the court. Precisely
10 Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai

because a single decision might contain several rulings, in our research, deci-
sions have been broken down into separate units (rulings).
Thus, in contrast to research of the judicial branch which generally consid-
ers one decision as the unit of observation, we take one ruling as our unit of
observation. The following example justifies this decision. In decision 47/2009
(IV.21.) the Hungarian Constitutional Court first held that “in the application
of Section 12 para. (3) of the Act XXIII of 1992 on the Legal Status of Public
Servants, it is a constitutional requirement based on Article 59 and 60 of the
Constitution that the deed of oath should not contain any data referring to the
public servant’s conviction of conscience or religion”. This Ruling 1 is a consti-
tutional requirement. As a second ruling of the same decision, the HCC rejected
“the petitions aimed at establishing the unconstitutionality and the annulment
of Section 12 and Section 13 para. (2) of Act XXIII of 1992 on the Legal Status
of Public Servants”. Consequently, Ruling 2 of this decision was a rejection. As
a third ruling of that very same decision, the HCC terminated “the procedure
aimed at the posterior review of the unconstitutionality of Sections 31/A–31/F
of Act XXIII of 1992 on the Legal Status of Public Servants”, which means that
Ruling 3 of this decision was a suspension. As a fourth ruling, it refused in the
same decision “the petition aimed at establishing the unconstitutionality and the
annulment of Section 13 para. (1), Section 65 para. (2) item d) and Section 102
para. (8) of Act XXIII of 1992 on the Legal Status of Public Servants, and it
refused other petitions as well”. This means that Ruling 4 of this specific decision
of the HCC was a rejection.
Certainly, constitutional courts do not always make unanimous decisions,
and sometimes judges express their disagreement by formulating dissenting
opinions. However, while dissenting opinions are linked to certain decisions of
the court, the substantive content of dissent relates to one or more rulings of
the same decisions. Consequently, not only decisions need to be broken down
into rulings, but dissenting opinions can be accounted for only by disaggregat-
ing them into the same meaningful and distinct units. That is, in our research,
dissenting opinions are also disaggregated into separate units referring to a
specific ruling of the court decision. Disaggregating majority decisions and
dissenting opinions into rulings implies that the judges’ dissenting opinions
can be directly linked to rulings of the majority decisions. This allows for
avoiding the pitfalls of a simplified analysis that would link whole judicial deci-
sions to dissenting opinions without taking into consideration that various rul-
ings in dissenting opinions might refer to different parts of a majority decision.
This means that dissenting opinions are analysed according to the same com-
ponents and elements as the majority decisions themselves, and it becomes
possible to investigate even individual judicial behaviour.

1.5.1 Components of rulings

Disaggregating decisions into rulings allows for identifying the most specific
and meaningful units that describes the behaviour of the majority of the court
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Title: Essay on art and photography

Author: A. V. Sutton

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Language: English

Original publication: Liverpool: Michael James Witty, 1866

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*** START OF THE PROJECT GUTENBERG EBOOK ESSAY ON

ART AND PHOTOGRAPHY ***
 E S S AY
ON

A R T A N D P H O T O G R A P H Y.

1866.
PRINTED BY
M. J. WHITTY
18 CABLE ST.
LIVERPOOL
 E S S AY

ON

Art and Photography.

BY

A. V. SUTTON.

LIVERPOOL:

MICHAEL JAMES WHITTY.

MDCCCLXVI.
 D e d i c at e d

TO MY

Friends and Patrons.

 INTRODUCTION
The idea that occurred to me in drawing in epitome a history of
the amalgamation of Art and Science, and ultimately induced me to
attempt so hazardous a task, was to enable the public to learn the
true course to be pursued in order to give fresh vigour and impulse
for the revival of Fine Arts, and I have endeavoured to exemplify in a
striking manner, as far as my poor abilities admit, the inestimable
advantage the one confers upon the other, which renders the
combination so essential in advancing and developing a better, truer,
and nobler style of art—a style that I feel assured will distinguish for
ever the present generation. With this view, I have gathered
materials from every common report or otherwise, from personal
acquaintance with some of the most distinguished artists of the day,
and it is with regret that I find how immeasurably incompetent I am to
do justice to a subject so worthy of being treated by greater talents
and accomplishments than are granted to me. In sketching the
various changes Photography has undergone ere it reached the
supremacy it now enjoys, owing—principally to the natural instability
of events—and in the rapid survey to which the limits of the Essay
constrain me, I have been compelled to point out defects “both in the
Art and the Science,” without reserve, but with all due respect to the
opinion of others; but while doing so, I trust that I have rendered
justice also.
As a professional artist, the reader may be led to suppose I write
with bias—not so. I have most cautiously avoided any sentiment that
might be so construed, and beg that judgment may be suspended
until these pages have been perused, the perusal of which, I
sincerely trust, may have the desired effect—not actually resulting in
the revival of Fine Arts—but as an auxiliary for paving the way for
others commanding a greater range of knowledge, who may thereby
be induced to embark in the cause I am humbly seeking to advocate.
Liverpool,
Jany., 1866.
ESSAY.
 ESSAY.
When Photography was first introduced, it met with a severe
struggle ere gaining the esteem it now happily enjoys. Artists of all
grades unanimously condemned it, looking upon it only in the light of
a vehicle that would carry destruction to their own especial pursuits,
while on those who attempted to practice and advance it fell
anathemas and ridicule. So great was professional prejudice, and so
blind in its apprehension, that it dexterously and successfully biased
and enlisted the opinion of the Press in its favour, which echoed the
assertions that, under the most favourable circumstances,
“Photography could only be a caricature of the subject it portrayed.”
Thus was the combination of Art and Science for a time checked in
its progress, and the artists, now exulting in having temporarily
attained their purpose, watched jealously the science of chemistry,
and depreciated as useless any further inquiry that seemed to
encourage or aid Photography.
The great body of the public, as usual in all such cases,
remained neutral, but fortunately, for the advancement of the new
art, there remained a few who were more sanguine than their
cotemporaries, and generously bestowed their sympathy on the
“oppressed.” They saw in Photography, a great science, then but in
its infancy, but which must ultimately compete with the finer arts; its
peculiar adaptation in copying rendering it still more valuable, not
only to artists, in furthering their own success, by securing
truthfulness and accuracy, but likewise in all the various usages to
which it has since been so successfully applied. Too numerous to
attempt to specify here.
At the period we speak of, Photography was entirely confined to
that class of illiterate men who only pursued it to benefit by its
novelty, and like everything new, particularly when added to
cheapness, produced a great amount of bad taste and unpardonable
vulgarity. It is, no doubt, an art which is peculiarly liable to be
perverted to base and immoral uses, but now that better taste
prevails, no such fears need be entertained. All classes of society
have been benefited by Photography; it has been a generous friend
to the poor as well as to the rich, and all must acknowledge its
superior advantages and merits. Not only has it been fostered and
liberally supported by the munificence of kings, but also in the more
humble walks of life has it been welcomed as a benefactor. Its
patrons of all grades have not only derived pleasure from the novelty
of its fascinations, but inexpressible consolation from the souvenirs it
affords of cherished places, and the memory of those loved ones
who may be far away, or sleeping the “sleep of death.”
It would indeed be deplorable if an art so consecrated to all that
is noble, pure, generous and holy, were again to be jeopardised by
the association of bad taste and worse usages. In England we are
fortunately protected from such an evil; but in other countries,
particularly in France, it still exists to an alarming extent, and until the
authorities there adopt the same measure of punishment as with us,
no one can walk the streets without being subjected to some gross
outrage against propriety and moral feeling. Photography, therefore,
has a double claim upon our affections—to preserve it unscathed
and unsullied, when we find it diverted into new channels that may
endanger its purity and legitimate usefulness. An art which assists
the memory and educates the taste is entitled to encouragement, the
more particularly, when by its aid we can recall in privacy the happy
hours suggested by the contemplation of the sure-reflected
lineaments of a doating mother, an affectionate sister, a tender loving
wife, or a fond and innocent child.
One great reason why Photography is so frequently applied to
unworthy purposes is, owing to its cheapness, for, where there is a
supply of anything novel, combined with cheapness, patrons will
present themselves. This is a public weakness which is to be
regretted, for although competition may be consistent with the “spirit
of the age,” it is an unpardonable error when cheapness is resorted
to as a means to success, in place of trying to excel by artistic or
superior merits alone.
In no stage of Photography have we been further advanced and
initiated into the grand applications of its science than by the
introduction of the “paper process;” it presented to the mind of the
photographer a channel for experimentalising and uniting art proper
with his own, for previously the word Art was foreign to the ear of the
professional photographer; all that was deemed essential in the
pursuit was that you should acquire a knowledge how to produce a
photograph free from all the optical and chemical defects. Light was
only studied to secure the image with brilliancy on the plate, of the
subject or object about to be copied. If it came out clear, clean, and
sharp, the operator was delighted with his success—its artistic merits
were never consulted; no question asked whether the face came out
with the rich, soft, rotundity of nature; whether the light and shade
had given tone and gradation, to add harmony to the picture;
whether the line of the head had been carried to prevent
awkwardness to the figure; whether the eyes did not look askance to
the pose of the head; its artistic superiorities, in fact, were never
looked for, which explains why, at that period, photographs were
taken, as a general rule, simply head-bust, most commonly called
vignettes, or as the Americans would term it, ambrotype. Such were
the productions of the “Glass Age.” But from the time the “paper
process” established itself, Photography at once took its place
among the finer arts, and having gained the victory, the artists that
had disdainfully resented its popularity, ventured to advance into the
new field of enterprise, and not only were they delighted in procuring
such an auxiliary, but they laboured in trying to improve the
application of its science to Portraiture. Though painting renders the
chemical result subordinate, and likewise subservient to the skill of
the artist, when removed from the pressure frame to the easel, yet in
no way does it depreciate Photography as an art which is necessary
to assist in securing with unerring accuracy of outline momentary
indications of character, expression of face, and costume, consisting
of numberless and minute details; all of which are at once portrayed
on a tablet of glass reflected through the Camera; and which, if not
satisfactory to the mind of the operator, he may arrange according to
his own artistic taste, judgment and skill, with a view of securing
pictorial effect and individual character.
It would be utterly impossible to estimate the advantages
Photography has conferred upon all mankind, or to anticipate the still
greater wonders it is yet destined to achieve.
Having sketched the early struggles which Photography had to
surmount to claim a high place for its followers, we now proceed to
examine its distinguishing features. In scrutinizing the works of even
the greatest artists of our day, we are sure to find some fault—some
error. Why is it that imperfection should exist even in works of the
highest rank, grand in conception, beautiful in execution, rich in
modulation, truthfulness of outline and form, and harmonious in
colouring? For the simple reason, that true excellence can only be
found in composition pictures where the creative mind of the artist
has been free to labour in accordance with its own poetic fancy, and
when such perfection exists in portraiture without the aid of
Photography, it will indeed be an exception!
When the practical eye of an artist takes up a Work of Art, he at
once recognizes the forte of the genius in some one particularity.
Say for instance one artist may excel in the master-stroke of
execution, and by a few strokes of the brush give much more artistic
and life-like effect than another would by hours of close application
and the minutest finish—the difference between these two artists
being that the one was a true born artist, and the other a lover of the
art—simply one who had acquired its mechanism from untiring study
and practice. We will again find others who excel in the
amalgamation of colours, others for composition, others for
costumes and drapery—others for the delicacy and transparency of
the flesh tones; and we might still further attempt to specify their
various fortes of particular excellence, by dissecting the human
forms and classify them by their technical terms in anatomy. For
instance, I have known artists who have excelled in the execution of
a face, and yet fail in the representation of the hair—all their heads
conveying to the observer an idea that they were wigged! In other
productions we are at once made sensible that the artist has one
ideal for a nose, and if the picture represents innumerable figures,
they are all possessed of the same type of nasal organ! In others
again, we find the artist manifest in some peculiarity in the eye or in
the mouth; but it is not any of these artistic individualities we ask for
when we are desirous of possessing a faithful likeness of some
loved one, nor do we care to find as we scan their well-remembered
features, the artist’s ideal of a nose, an eye, a mouth, a chin, or
some other member, in place of its, perhaps, more homely
characteristic. In nature we are daily witnessing how the various
types of features, at once the most classic and homely—highest and
lowest, come to mingle so congruously in one face, but such as
nature has thought fit to endow us, such do we want to be faithfully
and accurately delineated, and if such combination of distinctive
specialities of art are required for portraiture, which is rarely, if ever,
found individually, then how inestimable is the aid of Photography!
Many are under the impression that its process exaggerates to such
an extent that the object or subject reproduced is figuratively
distorted, which constituted the opprobium attached to its
productions. This is a mistake. If the operator uses a first-class
instrument, and sufficiently large to secure the same perfect
definition at the extreme margin of the plates as in the centre, and
regulated by the diaphragm with space sufficient for the required
length of focus, no aberation or distortion will be visible. But if a
questionable lens is used, and the aperture too small for the flatness
of “field” required, then the whole model will be more or less
distorted; its receding lines obtruding as to become perfectly blurred
and indistinct; the shadows black, without detail, and the lights hard
and flat. But let it be remembered that this Essay is entirely confined
to the aspirants to Art in its higher branches. Photography in the
hands of a lover of its art, initiated in the theory and practical
knowledge of its science, would not waste valuable time in the
production of such enormities. We have, therefore, only to deal with
its advantages in its higher order of execution; or if we deviate a
while from our theory, it is but to confirm our arguments, and give the
reader an opportunity to discriminate for himself between the two.
But to return to the fallacy of portraiture being confined to the
erroneous pencil of the deceitful imagination of an artist possessing
one or more only of those capabilities essential to the production of