Subnational constitutional courts and judicialization in Germany
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Subnational constitutional courts and judicialization in Germany Werner Reutter1 Accepted: 9 September 2020 © The Author(s) 2020
Abstract This paper examines the contribution of German subnational constitutional courts to the judicialization of politics in the German states, known as Länder. This research goal entails three dimensions. First, I have to define and measure judicialization. To accomplish this task, I use an index recently developed by an international group of scholars of comparative politics. Second, based on major theoretical approaches, I identify possible causes that might give reasons for judicialization, namely institutional preconditions and preferences of justices. In a third step, I use a linear regression in order to test the theory empirically and find links between causes and effects of judicial decision-making in subnational constitutional courts. The findings confirm institutionalist approaches that contribute to explaining decision-making in German subnational constitutional courts. Keywords Constitutional adjudication · Constitutional courts · Federalism · Germany judicialization
Introduction In 2011, Christoph Hönnige reported on a “major research gap” in comparative politics (Hönnige 2011: 355). On the one hand, he found that many scholars ascribe constitutional courts an “important role” in democratic systems (Hönnige 2011: 346). In this perspective, democracies show a strong tendency towards judicialization if these political systems have courts that can nullify laws (Lijphart 1999; Tsebelis 2002; Brouard and Hönnige 2017; Stone 1994). Ran Hirschl (2004: 73) even identified a “global trend toward juristocracy” which is “part of a broader process, whereby political and economic elites, while they profess support for democracy, attempt to insulate policymaking from the vicissitudes of democratic politics”. * Werner Reutter [email protected]‑berlin.de 1
Institut für Sozialwissenschaften, Humboldt-Universität zu Berlin, Unter den Linden 6, 10099 Berlin, Germany Vol.:(0123456789)
W. Reutter
This would mean that a small elite replaces elected members of parliament. “[I]n the end,” Alec Stone Sweet similarly concludes, “governing with judges” is equal to “governing like judges” (Stone Sweet 2000: 204). On the other hand, Hönnige (2011: 347) deplores the fact that we know “precious little about judicial systems outside the United States”. And that seems to hold true for pretty much everything that concerns constitutional adjudication, at least according to Gibson et al. (1998) whom Hönnige calls as a witness to his case. Gibson et al. (1998: 343) stated that we “understand little or nothing about the degree to which various judiciaries are politicized; how judges make decisions; how, whether, and to what extent those decisions are implemented; how ordinary citizens influence courts, if at all; or what effect courts have on institutions and cultures.” Based on this discrepancy between assumed importance of and missing knowledge about constitutional adjudication, Hönnige (2011:
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