Within the scope of “courts and politics”-analyses, the question of judicial or judicially induced policy change figures prominently. However, outside of an US -context, relevant work so far almost exclusively focuses on the role of Constitutional/Supreme Courts and their interaction with the legislature and executive (i.e. judicial review). Thus, the focus is largely on the strongest and most visible impact of the judicial branch on policy-change.
However, this neglects that the judicial role on policies is deeper, more present and especially far more nuanced and not limited to declaring acts unconstitutional. Besides, existing research on courts and policies is hardly connected to the advanced research on (general) policy-change in theoretical and conceptual terms. What is lacking so far is a more thoroughly und theoretically founded integration of the role of the judiciary in that research. In short, there is a lack of theoretical/conceptual ambition and comprehensiveness here.
Such integration is worth pursuing as policy-change is more than merely abstract legal change. It is instead more appropriate looking at how the individual is regulated (restricted) by the state to which the judiciary also belongs.
This paper will step in here. Its central goal is to elaborate towards an analytical framework to better integrate courts and their role (impact) within policy change analysis in theoretical and conceptual terms. Thereby it analyses the role of higher and lower courts, their roles in different legal systems (civil and common law), on different policy types and what factors foster or inhibit judiciaries’ policy impact. Attention will also be paid to the appropriate treatment of courts as an independent variable in explanatory policy research.
The paper uses preliminary empirical results from large research endeavor on legislative/executive as well as judicially induced change in nine fields of morality policy, which is deemed especially prone to judicial impacts.
