Former Member of the Venice Commission Adviser to the Constitutional Review Chamber of the Supreme Court of Estonia
Courts as Political Institutions
The main issues discussed at the scientific conference dedicated to the 15th anniversary of the Constitution of Estonia were the questions of what the role of the constitutional court should be in the society and to what extent the decisions of the parliament may be subject to judicial review. Scholars, and especially legal scholars, usually also attempt to answer the normative question of how the constitutional court should act - in other words, what restrictions may the court impose on the parliament when relying on the constitution. Two opinions compete with each other. On one side are those who support a modest court1. They emphasise that the more the parliament's behaviour is restricted by the court, the more the court interferes with the activities of an institution elected by the people and, thereby, with the functioning of democracy. On the other hand, the advocates of a stronger role of the court find that in a democratic society the court has a critical role to play - to ensure compliance with the constitution and, in particular, continuing respect for human rights and democratic processes. Often, a discussion of the importance of the judiciary's independence accompanies this viewpoint.
This article has a slightly different emphasis: I am trying to find answers to the empirical question of what kinds of restrictions are and can be established in reality by constitutional courts on the parliament and other institutions of public authority. My approach is not normative but, rather, empirical, with an attempt to explain why courts act in one way or another. My objective is to theorise about the position of the constitutional court in a political system and, to some extent, speculate as to the correctness of such theories, using the Supreme Court of Estonia as an example. My analysis is not based on jurisprudence but, instead, on political science - more specifically a rather small part of the political science literature, as I am relying on the work of researchers who regard courts as an empirical object of study2.
For an empirical researcher, the court as one of the decision-makers in matters of social importance is not a remarkably different object of study from the parliament, the executive, or other political institutions. Such research is devoted to politics of judicial review 3 , examining the question of what influences a constitutional court in making one kind of judgment as opposed to another, as well as how the constitutional court influences the society4. In this article, I am thus attempting to provide an overview of studies in the field of politics of judicial review5.
Let me begin with factors restricting the freedom of a constitutional court. While I have noted that courts do not stand out remarkably in comparison with other political institutions, this does not, however, mean that there is nothing specific to the behaviour of a court. Even the most radical political scientists attribute at least some weight to laws, including the constitution, as a factor restricting the activities of courts, although many think the weight accorded to these is quite minor.
At the same time, there are probably no political scientists who would consider the judgments of a court to be completely in the 'legal' realm - i.e., completely explicable by the nation's constitution or other provisions of law6. Several factors explain why a complete binding to the constitution is cast aside without further consideration, and these reasons have already been pointed out repeatedly. First is the theoretical reason based on the level of generalisation of terms used in the constitution. Irrespective of which methodology is used for interpreting the constitution, there is inevitably a certain freedom of choice in adjudication when a court operates with such constitutional-law concepts as the right to good administration, legal certainty, or legal clarity. For example, what are, in a democratic society, the important matters that must be regulated by parliamentary laws and what constitutes technical detail that may be regulated by the executive under authority received from the legislature? 7
The argument that judgments made on the basis of at least international human rights provisions, including the case law of the European Court of Human Rights (ECHR), are predetermined by provisions of law is rather weak. In such cases, the ECHR should also be a tribunal whose judgments are predetermined by provisions of law. More probably, the strong influence of the ECHR case law in increasingly varied areas of life implies that the ECHR has, over time, 'discovered' new rights while relying on essentially the same provisions of law8.
Reference to well-known legal principles is not of much help either, as the application of these principles in specific situations differs remarkably from country to country. For instance, the quite strict restrictions adopted by the Estonian Supreme Court in its case law concerning the delegation of legislative power to the executive 9 are indeed similar to the corresponding German principles but substantially different from those recognised in France , England , or the United States 10.
The lack of reality in the image of constitutional courts as bound to proceeding from the law is also implied by empirical experience, in addition to the theoretical argument. For example, let us take the question of why some courts are more active than others11. How can one explain the fact that, on the basis of similar constitutional provisions, one constitutional court (e.g., in Hungary or the Republic of South Africa ) declares the death penalty to be unconstitutional while another court (e.g., the Estonian Supreme Court) does not do the same? 12 Or that one constitutional court concludes that, pursuant to the constitution, persons detained in custodial institutions must be given voting rights but another does not? 13 Or one might posit even a simpler question: why do different judges, in the same time and space, reach different conclusions in applying similar provisions of law? 14 It would be easy to state that one judge or court is right while the another is just mistaken. However, then an answer would be required to the question of why one judge was mistaken - i.e., why the law was not applied correctly by the constitutional court or judge concerned. This simply cannot be explained with reference to law only.
Therefore, there are probably no political scientists who would seriously suggest that judgments of constitutional courts can be unambiguously explained by the law - the constitution - or that such judgments are born strictly of application of the constitution. This is probably one of the most substantial differences between legal professionals and social scientists: at least some law professionals and, in particular, the constitutional courts themselves try to leave the public with the impression that the judgments of constitutional courts repealing laws represent the only correct legal solution derived from the constitution, as if no adjudications are made on any other basis than the constitution15. However, this cannot be said about all legal professionals. For example, former Justice of the German Federal Constitutional Court Dieter Grimm has written: "Today, probably no one would argue against the fact that the behaviour of judges and the judgments are not and cannot be completely explained by provisions of law." 16 It is probably impossible to find a political scientist who would try to uphold the myth of law-based decision-making for the public. The ardour of debunking the myth has given rise to the articulation of rather radical-sounding ideas. For example, Martin Shapiro, one of the most recognised political scientists studying politics of judicial review, wrote, in 1994, an essay entitled 'Judges As Liars', where he argues that courts, particularly constitutional courts, are inevitably creating new law and that judges lie when they deny it17. Nonetheless, he sees this not as an evil but, rather, as an inevitable phenomenon: judges invariably try, and will always try, to convince us that their judgments are based on law.
Since the idea that a judge's behaviour may be influenced by nothing apart from the law is nipped in the bud by the political scientist, such a scientist is not fettered in studying other possible sources of influence. These potential additional sources can be broadly classified into four categories: first, the judge's own convictions; second, influences inside the court; third, influences from other institutions; and, fourth, influence from the public.
Probably the most painful reactions among jurists are occasioned by political scientists claiming that the behaviour of judges can be explained - if not the best, then at least very well - by their political convictions and ideologies18. For those scholars, a judge makes a judgment for or against the law, relying on the same criterion as a member of the parliament: whether this is a law that constitutes the best solution for the society according to the judge's convictions. This approach is quite similar to that of the school of the legal realists in jurisprudence: for them, the statement of grounds actually consists of the legal reasons that the judge has sought later...