Do the Kinds of Action Influence the Politicisation of Constitutional Courts? A Measurement Proposal and First Empirical Evidence from a Paired Comparison

In the history of constitutional review, the politicization of constitutional courts is one of the best acknowledged phenomena. Its theoretical reflection dates back at least to the controversy between Hans Kelsen and Carl Schmitt (1928–1931). Today it is common sense in political science that there is no »pure« legal constitutional review without any political influences: Constitutional review is certainly not detached from politics, and the interpretation of the often vague and amenable constitutional law makes constitutional courts regularly taking part in legislation and constitution-making. Comparative studies have so far mainly analyzed the influence of the judges’ appointment procedures on the politicization of constitutional review. In contrast, the set-up of the often manifold kinds of action at centralized constitutional courts has not been subject of any comparative analysis. The kinds of action regulate the access to the court, the potential topics of the law-suits and the consequences of the court decisions. Our hypothesis is that these kinds of action significantly co-determine the politicization of constitutional courts, both with regard to the strategies of the applicants as well as to the decision scope of the judges. Our paper firstly presents a functional conception of politicization, understood as deciding a law-suit on the basis of political rather than judicial criteria. Secondly, we propose how to quantitatively measure politicization using the number of dissenting opinions and the voting results. Thirdly, we present first empirical results based on a study of all decisions of the German and Bulgarian constitutional courts between 1991 and 2010. This paired comparison shows that different kinds of action effect different levels of politicization. Finally, we will discuss to what extent the different set-ups of the kinds of action might explain differences of the positions of constitutional courts within their governmental systems in an international comparative perspective.