The paper investigates three phases in the activity of the Hungarian Constitutional Court through an analysis of dissenting opinions in politically relevant cases. Dissenting opinions reveal judicial behavior which, according to the attitudinal model, might be linked to the political position of the parties that nominated the judges. Beyond examining individual decision-making, the article applies network-analysis to identify whether patterns in dissenting opinions might be differentiated according to political positions and a left-right partition. According to our findings, political blocs did not emerge and become dominant after 2010; rather, this phenomenon was already present during the second phase of the Court (1999–2010) as the judges could be differentiated along the political positions they adopted in their dissenting opinions. During the third phase (2010–2018), the network of judges proved to be less polarized, and a separation between old and new judges also emerged.
Since the Austrian Constitutional Court’s (ACC) establishment 100 years ago, its decisions on controversial matters have regularly sparked broad social debates underlining their political implications. Despite the ACC’s crucial part in shaping Austria’s legal landscape, the individual judges’ impact in taking those decisions has remained behind the curtain in public perception. A recent legislative proposal stipulating the possibility to publish separate opinions has sparked public discussion on their role of constitutional judges once more. While media picks up the issues of the ACC judges’ ideology, legal scholarship has neglected to address this topic in depth. The paper analyses several factors including professional background or gender of the involved judges as well as the appointment procedure and how they may influence the ACC’s decision-making and provide insights for future discussions regarding Austria’s system of constitutional adjudication.
This paper will demonstrate how and why different legal systems, national and transnational, limit judicial dissent in order to, inter alia, prevent the expression of judicial ideology through the requirement of unanimous, sometimes even anonymous judicial decisions. We will we argue that a normative choice in favor of concealing judicial ideology is not just a political, institutional choice, it is also informed by a deeper, underlying conceptual understanding of law. In conclusion, it will be, hence, suggested that on the basis of the theoretical and practical attitudes toward dissenting opinions and the judicial ideology that they conceal or reveal three different conceptions of law can be identified: the objectivist, the discursive and the subjectivist conception.
The paper will use a rich dataset from the Slovenian Constitutional Court to analyze when and why judges disagree, and when they try to reach consensus. The analysis is based on assumption that a decision of a judge to vote in favour or against a Court's decision is based not only on the intensity of his of her disagreement with the majority ruling and its reason, but also on individual characterics of a judge and the efforts that judges as a group are willing to invest into reaching a consensus. The dataset includes a full voting record of 27 judges that composed the Court in three different periods – immediately after a Constitution of independent Slovenia based on principles of rule law and liberal democracy was adopted; in the politically stable period of a gradual economic transition; and in the period marked by severe economic crises and political instability.