Comparative Judicial Politics Research Paper

II. Courts and Legal Systems

III. Comparative Judicial Decision Making

A. The Legal Model of Judicial Decision Making

B. The Attitudinal Model of Judicial Decision Making

C. The Strategic Model of Judicial Decision Making

IV. Constitutional and Appellate Courts in Comparative Perspective

A. Judicial Review in Comparative Perspective

B. Judicial Independence in Comparative Perspective

C. Party Capability Research

V. Trial Courts and Juries in Comparative Perspective

VI. Future Directions

VII. Conclusion

I. Introduction

The study of courts in comparative perspective has a long history in the discipline of political science. C. Neal Tate (2002a) notes that articles dealing with international judicial systems were published nearly 100 years ago in some of the first American political science journals. However, the study of comparative judicial politics faded from the forefront of the discipline of political science for several generations, until social scientists began to again analyze legal systems comparatively, starting in the 1960s. In the last several decades, there has been a virtual explosion of research dealing with judicial structures and processes in comparative perspective. This research paper provides an overview of some of the most significant recent research on comparative courts and also examines the trends and future directions for comparative judicial scholarship. Obviously, only the general trends in comparative courts scholarship can be discussed here due to space limitations; for a more detailed listing of work in the field, the reader is advised to consult Tate (2002a, 2002b), which provides a comprehensive bibliography of books and articles in the subfield of comparative judicial systems.

This research paper first reviews the primary theories of judicial decision making, then examines constitutional and appellate courts in comparative perspective, including the differing forms of judicial review found throughout the world, then provides an overview of comparative trial systems, and concludes with suggestions for future directions in comparative judicial politics research.

II. Courts and Legal Systems

The study of courts in comparative perspective requires that one first determine exactly what constitutes a court. Early work in the comparative study of judicial systems attempted to provide this definition. An important study is Theodore Becker’s Comparative Judicial Politics: The Political Functionings of Courts (1970). In this study, Becker defined a court as follows:

(1) a man or body of men (2) with power to decide a dispute, (3) before whom the parties or advocates or their surrogates present the facts of a dispute and cite existent, expressed, primary normative principles (in statutes, constitutions, rules, previous cases) that (4) are applied by that man or those men, (5) who believe that they should listen to the presentation of facts and apply such cited normative principles impartially, objectively, or with detachment, . . . and (6) that they may so decide, and (7) as an independent body. (p. 13)

A functionalist definition of court is given by Martin Shapiro in his important book Courts: A Comparative and Political Analysis (1981). Shapiro suggests that courts serve three major functions: conflict resolution, social control, and lawmaking. By lawmaking, Shapiro refers to interstitial lawmaking, which consists of filling in the gaps in statutory or customary law, and also to the judicial creation of law and policy. He notes that, although the existence of judicial policy making is frequently denied, the phenomenon exists in all courts and judicial systems.

These early works are notable because they laid out the foundations on which more advanced analyses in comparative judicial politics could be conducted. The examination of comparative court systems is complicated by the fact that there are three general types of legal systems found in the world: common law, civil law, and religious law. The jurisprudence, judicial role, and organization of courts vary widely in each of these legal systems. Put most simply, common law legal systems are found primarily in Anglo-American nations, and the principle of precedent— following the legal principle established in previous court cases—is one of the chief elements of this legal system. Civil law systems, found in Continental Europe, Latin America, and much of the rest of the world, generally do not rely on the principle of precedent but instead use extensive codification and written codes to guide judges in their decision making. Finally, the great variety of religious law systems, found in the Middle East and elsewhere, rely extensively on the principles found in sacred texts to direct judges in their duties (Merryman, 1985).

Clearly, the wide variance in the types of courts and legal systems has presented significant obstacles for researchers seeking to understand and elucidate legal phenomena across national borders. Thus, the most common type of research in comparative judicial research is the single- country or single-court study, which seeks to explain and predict judicial behavior in one court only. This type of research is quite valuable in that the frontiers of knowledge about that particular court are expanded; however, the limitation of this work is that the ability to apply the findings to other courts may be limited. Nonetheless, in the past several decades, researchers have made significant progress in the field of comparative judicial politics by conducting increasing numbers of both single-court and cross-national judicial studies.

III. Comparative Judicial Decision Making

A great deal of research in law and courts scholarship deals with judicial decision making. In other words, one of the central endeavors for political scientists who study judges and courts is to explain and predict how and why judges rule in certain types of cases. The attempt to understand this particular form of judicial behavior has been limited largely to analyses of appellate courts in the U.S. system. However, an increasing amount of work is being devoted to examining this phenomenon in comparative perspective. Research has been carried out analyzing the high courts of, among others, Latin American, European, and Middle Eastern nations, as well asAustralia and Canada. In addition, courts in both democratic and authoritarian regimes have been studied (see, e.g., Ginsburg & Moustafa, 2008). Many political scientists have sought to test the judicial behavior of appellate court judges outside the United States by using one of the primary theories of judicial decision making: the legal, attitudinal, and strategic models. The sections that follow provide a brief overview of each of these approaches, as well as the utility of each for explaining judicial behavior across nations and courts.

A. The Legal Model of Judicial Decision Making

The legal model is the traditional theory of how judges in common law legal systems decide cases. In its simplest form, the legal model proposes that judges make decisions on the merits of a particular case by interpreting the facts of the case through referring to the plain meaning of the relevant statute or constitutional provision, precedent in prior cases, and legislative and original intent of those who drafted the law or constitution (Segal & Spaeth, 2002). So the legal model posits that judges will not use their personal political or partisan values when deciding cases, but only legal factors. In other words, according to the theory, judges will weigh and balance prior precedents, statutes, and constitutional provisions when deciding the outcomes of cases. Again, the individual political ideology of a particular judge is not expected to influence the decision on a case, because judges will focus exclusively on the legal factors. Indeed, judges themselves almost always maintain that they decide cases only according to legal factors, and they usually deny allowing personal policy preferences to influence their voting (Spaeth, 1995). Thus, the legal model of judicial decision making holds that the law, not personal political preferences, will drive the decision-making process of judges.

In comparative perspective, the legal model is not well suited to explain judicial behavior outside common law nations. Because judges in civil law legal systems generally do not rely on the precedent established in previous cases, the legal model as usually formulated does not apply in these courts. It is possible that a modified legal model could be formulated to measure the behavior of judges in civil law courts. However, to date, almost all political scientists have abandoned the legal model framework when studying the behavior of judges outside common law legal systems.

B. The Attitudinal Model of Judicial Decision Making

Perhaps not surprisingly, many American political scientists have rejected the legal model of judicial decision making and instead have embraced an alternative theory: the attitudinal model. The attitudinal model received its most thorough treatment in Jeffrey Segal and Harold Spaeth’s 1993 book, The Supreme Court and the Attitudinal Model, and their follow-up volume, The Supreme Court and the Attitudinal Model Revisited (2002). Segal and Spaeth argue that the attitudinal model represents a melding of key concepts from legal realism, political science, psychology, and economics (2002).

Stated most simply, the theory holds that judges tend to vote according to their political preferences, attitudes, and ideologies and not according to the relevant doctrine, legislative intent, or legal precedent of a particular case. Spaeth (1995) contends that the justices vote as they do because they want their decisions to reflect their individual policy preferences. A number of factors are present at the U.S. Supreme Court that encourage attitudinal voting by judges, and these factors generally apply to judges in other common law high courts as well.

First, Supreme Court justices have no ambition for higher judicial office, so the judges usually do not have to consider the consequences of their decisions on the merits of a case (Segal & Spaeth, 2002). In other words, because the U.S. Supreme Court is the highest tribunal in the system, the judges do not have to worry about having their record scrutinized and possibly being denied a promotion to a higher court in the future. Nor do U.S. Supreme Court judges typically seek political office, so there is no fear of political accountability either. Segal and Spaeth also note that Supreme Court justices are immune from electoral accountability. Although many U.S. states employ periodic judicial elections, federal judges enjoy life tenure, and thus there is no fear of losing their office in an election because of their voting record.

Segal and Spaeth (2002) also observe that the U.S. Supreme Court is a court of last resort that has complete control of its docket. That is, the members of the Supreme Court have nearly total discretion as to which cases will be accepted for judicial review. This ensures that cases that are completely without merit or are totally one-sided will usually be screened out. Only those cases that present a genuine dispute between two legally defensible positions will be accepted by the Court. So, the fact that the members of the Supreme Court control their caseload usually ensures that only cases with solid legal justification for both litigants will be accepted, which should encourage attitudinal voting. Furthermore, because the Supreme Court is at the top of the judicial pyramid in the United States, there is no possibility of a higher court’s reversing the Supreme Court’s decision on a particular case.

Because of all these institutional arrangements—life tenure for its judges, control of the Court’s caseload, lack of political or electoral sanctions, court of last resort—the judges at the U.S. Supreme Court are completely free to decide cases on the basis of personal attitudes, values, and ideologies, not the law, according to the attitudinal model of judicial decision making. Spaeth (1995) does note that there are some potential limitations to the attitudinal model. First, it is unclear whether the attitudinal model of judicial decision making applies to lower appellate courts, because of the restrictions under which these judges operate. Specifically, the possibility for judicial (or political) promotion could limit the tendency of these judges to vote their true preferences, as could the possibility of reversal by a higher court. Furthermore, most lower appellate courts do not have complete control over their docket, which means that many cases lacking a genuine legal conflict must be accepted in these courts.

Whether the attitudinal model can be used extensively to analyze judicial behavior outside the United States remains an open question. Empirical research on high courts in Canada and Australia has demonstrated that the attitudinal model can be used to analyze judicial behavior in those nations and that attitudinal voting has been empirically observed in courts outside the United States (Ostberg & Wetstein, 2007; Weiden, 2010). However, the attitudinal model may be difficult to apply in other nations’ courts because of the difficulty in discerning the ideology of individual judges in these systems, and also because some high courts do not release individual-level opinions but rather rely on one single court-level judgment. In other words, if a high court does not indicate in its opinions which judges voted with the majority and which judges dissented, then it may be difficult to analyze individual judges’ behavior accurately, which is a necessary component of the analysis of judicial decision making with the attitudinal model.

C. The Strategic Model of Judicial Decision Making

The third theory of judicial behavior is the strategic model. The strategic model borrows some of its central assumptions from the field of economics and, more specifically, from what is known as rational choice theory. Stated simply, the strategic model accepts that judges will vote according to their policy preferences, but in order to maximize those preferences, judges will take into account the voting of the other members of the court and thus cast their votes strategically (see generally Epstein & Knight, 1998). In other words, strategic judges are not unconstrained actors but must weigh the preferences of other actors when making decisions on cases. Many attempts to formally model strategic decision making at the U.S. Supreme Court rely on game-theoretical accounts to demonstrate that some element of judicial decision making was “sophisticated” (i.e., took into account the preferences of other judges) rather than “sincere” (i.e., was a pure example of a judge’s voting for his or her policy preferences, without regard to other judges’ actions).

There is continued debate over the utility and explanatory power of the strategic model and rational choice theory overall (see generally Green & Shapiro, 1996). However, some of the strongest research in comparative judicial politics has used formal models to analyze and explain the behavior of judges outside the United States (Helmke, 2002; Vanberg, 2001). Because the strategic model of judicial behavior does not rely exclusively on individual-judge-level data that may not always be available, it is well suited to the analysis of comparative judicial politics. Indeed, these formal models of judicial behavior are crucial in generating theories of the judicial process that can be tested empirically against actual court data.

IV. Constitutional and Appellate Courts in Comparative Perspective

Recent work on constitutional courts outside the United States has demonstrated that some political systems are becoming increasingly “judicialized” (Stone, 1992a, 1992b; Tate & Vallinder, 1995). That is, legislators and executives must anticipate the rulings of high courts and frequently alter their policies in advance of adoption to avoid nullification (Tate & Vallinder, 1995). Of course, this phenomenon has always existed to some degree, but it seems clear that this tendency has increased to the point that it can be said with confidence that, in many nations, the political process has been “constitutionalized” (Shapiro & Stone, 1994). Indeed, some commentators have noted that European constitutional courts may now operate as third legislative chambers (Shapiro & Stone, 1994; Stone, 1992b). In some parliaments in which the representatives are weak and dominated by the executive, the constitutional court may be a more effective policymaker than the parliament itself, in this new era of the judicialization of politics (Stone, 1992a). Martin Shapiro and Alec Stone (1994) note that judges in some European constitutional courts “actually provide the draft statutory language that the judges say they would find constitutional” (p. 404) after reviewing a particular policy. Although the policy-making authority of constitutional courts varies by country, the fact that these courts are well established as policymakers is undeniable.

The judicialization of politics has had other consequences, as well. Scholars have observed that a constitutional politics of rights has become increasingly present, especially in Europe. Shapiro and Stone (1994) describe the constitutionalization of politics as follows:

It easily comes to infect the entire political system because opposition political parties, lawyers, citizen groups, and others can see that rights claims are an effective avenue of social change. These actors have become, in essence, the political constituencies of the judges and of constitutional review. (p. 417)

The increase in rights claims and rights discourse has been observed outside Europe as well. Charles Epp (1998) argues that the explosion in rights-based litigation is due primarily to what he terms the “support structure” for legal mobilization, rather than bills of rights, judicial independence, judicial leadership, or any structural explanations. By “support structure,” Epp refers to the financial resources and legal expertise that allow litigants to pursue claims that they almost certainly could not finance on their own. Building on the well-developed legal mobilization literature in the United States, Epp adds another piece to the study of comparative courts.

No discussion of comparative constitutional politics would be complete without mention of the supranational development of constitutional politics. The case law of European Union tribunals such as the European Court of Justice, the European Court of Human Rights, and the International Court of Justice is often used as precedent in cases before European constitutional courts. Additionally, the European Conference of Constitutional Tribunals, which is composed of all the presidents of the highest courts in Europe, meets regularly at conferences in which their rulings are discussed among each other. Thus, the constitutionalization of the political process is proceeding within national boundaries and is also being encouraged at the supranational level. The tendencies have combined to increase the judicialization of politics in Europe and throughout the world.

A. Judicial Review in Comparative Perspective

Judicial review is the ability of a court to overturn a piece of legislation, an act of the executive, or a lower court decision. However, judicial review powers vary widely by country and by court. A number of studies have examined judicial review comparatively in an attempt to provide a better understanding of how the practice of judicial review differs around the globe. Indeed, Donald Jackson and Tate’s (1992) Comparative Judicial Review and Public Policy provides a series of useful essays describing and comparing the differing forms of judicial review found in the world. The authors note two important distinctions in types of judicial review:

1. A posteriori (or concrete) review, in which judicial review occurs only after the statute has already taken effect and there is a concrete case or controversy extant, versus a priori (or abstract) review, in which judicial review may take place before a law takes effect and thus without an actual case or controversy. Stone (1992a) notes that this dichotomy is not exactly accurate, as abstract review can exist a posteriori, as in Austria, Portugal, Spain, or West Germany, or a priori, as in France.
2. The all courts model of judicial review (used in the United States), in which any court at any level may declare a statute unconstitutional, versus the constitutional courts model of judicial review, wherein only a specially designated court may review a challenged statute’s constitutionality (Tate, 1992).

In addition, an excellent cross-national study of the formation of constitutional review in new democracies, demonstrating how judicial review serves the interests of political actors during regime change, is found in Tom Ginsburg (2003). Another theory analyzing cross-national constitutionalization is described by Ran Hirschl (2004). This theory is termed hegemonic preservation, and it holds that the growth of judicial power is explained by interplay of the self-interest of political actors, economic elites, and judicial notables—all of whom work to create constitutional reform in a manner that serves their own agenda.

Another trend in judicial review in comparative perspective deals with the introduction of the international European Convention on Human Rights. This international agreement may be having a significant impact on the jurisprudence of the United Kingdom, which has traditionally eschewed judicial review of legislation in favor of the centuries-old tradition of parliamentary supremacy. David Weiden (2009b) empirically analyzes recent court cases in Northern Ireland and finds that litigants are now willing to invoke the protections of the European Convention on Human Rights in domestic courts and request that British laws be overturned through the process of a declaration of incompatibility. In other words, the long-held principle of parliamentary supremacy in Britain may be slowly giving way to the principle of judicial review, which has never truly existed in the United Kingdom. To be sure, this is a very recent development in Britain, and additional research in coming decades and in other British courts will allow for further confirmation of this trend.

B. Judicial Independence in Comparative Perspective

The concept of judicial independence is closely related to judicial review and has been another area wherein a great deal of comparative research has been conducted. Judicial independence, in its simplest sense, refers to the degree of freedom that judges have from other political actors. In other words, the study of judicial independence examines whether judges can make decisions without being influenced by policymakers and elected officials. A number of institutional features can increase judicial independence. For example, life tenure for judges (rather than fixed terms) ensures that they can decide cases without fear of retaliation from the executive or legislature. However, the ability for judges to make decisions freely is a double-edged sword because judicial decisions that diverge too greatly from public opinion can result in a loss of support for the court, perhaps damaging the court’s legitimacy. This danger is especially evident for judges in emerging democracies. Ginsburg (2003; Epstein, Knight, & Shvetsova, 2001) found that, in the early years of a court’s existence, judges in these developing nations are less likely to make rulings that challenge other political actors.

C. Party Capability Research

A continuing debate in law and courts scholarship has been whether litigants with more resources are more likely to win their cases than are those who do not possess such resources, an issue referred to as party capability. This debate was first described in Marc Galanter’s (1974) classic article that examined this question in American appellate courts and found that litigants that are “repeat players” (as opposed to “one shotters”) and have greater resources are more likely to prevail in appellate litigation.

The question of whether parties with greater resources tend to prevail in litigation is well suited to comparative judicial analysis. Peter McCormick (1993) examined whether governmental litigants are more successful than private litigants in litigation and found that repeat players are more likely than one shotters are to experience success in the Supreme Court of Canada. However, in Australia, a similar study found that there is little evidence to support the conclusion that litigants with greater resources are more successful at the High Court (Smyth, 2000). The difference in the results between the Canadian and Australian high courts regarding party capability is striking and raises the question of whether the party capability thesis applies only to certain courts.

The most comprehensive comparative examination of Galanter’s (1974) thesis to date is by Stacia Haynie, Tate, Reginald Sheehan, and Donald Songer (2001). These authors examined party capability theory in the high courts of Australia, Canada, England, India, the Philippines, South Africa, and Tanzania. They found that the party capability thesis was strongly supported in the high courts of Canada, Great Britain, and Tanzania but less so in the other cases in the study. Thus, the question as to whether the party capability thesis is generalizable across nations and courts remains open. Further research in additional countries and judicial systems may help answer these questions and constitutes a promising area for additional comparative courts research.

V. Trial Courts and Juries in Comparative Perspective

In contrast with the well-developed literature on appellate courts, political scientists have conducted little research on trial courts in comparative perspective. Indeed, most of the empirical and interpretive work on comparative trial courts has been done by economists, criminal justice specialists, and law professors. This is somewhat surprising because there are large differences in the trial procedures and processes used in Anglo-American countries and those used in the rest of the world, and these differences present many interesting empirical questions. The trial system used in Anglo-American nations is known as the adversarial model and is premised on the assumption that the truth in a court case will be revealed most efficiently through a competition between the litigants, and then the ultimate decision in the case will usually be made by a jury. By contrast, the trial system generally used in Continental Europe, Africa, Latin America, and Asia is the inquisitorial model. This trial system is less confrontational than the adversarial model, but instead is more akin to an investigation wherein the judges control the proceedings, call and question the witnesses, and also make the ultimate determination in the case.

Clearly, the fundamentally different approaches toward the administration of a trial found across the globe present intriguing comparative issues for social scientists. The economists Bruno Deffains and Dominique Demougin (2008; see also Block & Parker, 2004) conducted experimental research analyzing whether the adversarial or inquisitorial trial system tended to be more equitable; they found that the adversarial trial system could lead to inequality and inefficiency, at least in criminal cases. These researchers naturally brought an economic focus to their studies; political scientists should be able to add additional political and legal variables to these analyses.

Another area that has been little studied is that of juries in comparative perspective. The trial jury was developed in England and is still found there, as well as in former British colonies: the United States, Canada, Australia, New Zealand, Ireland, and dozens more nations around the world. Neil Vidmar (2000) reports that the trial jury has been eliminated in most systems for civil trials but is still widely used in criminal cases in those nations retaining a jury system. Given that the trial jury remains ubiquitous in most common law legal systems, a comparative analysis of juries could yield numerous insights for comparative judicial researchers. However, to date, the comparative study of juries remains largely the domain of law professors. Vidmar’s World Jury Systems is the single best volume on comparative jury research, consisting of a number of essays describing the jury system in particular countries, as well as an invaluable introductory essay. However, true empirical cross-national research on juries remains to be conducted.

VI. Future Directions

The field of comparative judicial systems is still relatively young, and many avenues remain available for new empirical and interpretive research. As noted above, cross-national empirical judicial research (as opposed to single-country studies) remains less common within the field of political science (but see, e.g., Epp, 1998; Herron & Randazzo, 2003; Smithey & Ishiyama, 2002; Weiden, 2010). However, it is likely that the release of the High Courts Judicial Database (Haynie, Sheehan, Songer, & Tate, 2007a) will stimulate a great deal of cross-national courts scholarship. This new database consists of numerically coded information for all cases (or a random sample of cases in India and Philippines) reported by the high court in 11 countries: Australia, Canada, India, Namibia, the Philippines, South Africa, Tanzania, the United Kingdom, the United States, Zambia, and Zimbabwe. The period for which the data were collected varies by country, ranging from 9 to 52 years. In other words, each case formally reported by the high court in those nations for the specified period was numerically coded for a number of variables, thus permitting statistical analysis of long-term trends and other phenomena (Haynie, Sheehan, Songer, & Tate, 2007b). One concrete example of this is the emerging research in comparative party capability (Haynie et al., 2001), which was made possible by the development of the High Courts Judicial Database.

The ready availability of this data allows researchers to compare various phenomena, such as rates of judicial activism or judicial decision making, in cross-national perspective. The growth of these lines of research may allow for the development of genuine cross-national theories of the judicial process. In other words, it may be possible for scholars to identify certain patterns of judicial behavior that transcend individual court systems. In time, there may be general theories of common law and civil law courts that have been empirically analyzed and confirmed. The role of courts in authoritarian regimes is also an area in which significant progress may be made (Moustafa, 2007).

Another promising direction for future research is the comparative analysis of trial courts and trial systems. As noted above, little research has been conducted by political scientists regarding the differences between the adversarial and inquisitorial trial systems. This fundamental divide has long escaped notice by political scientists, most likely because of the difficulty in obtaining data. Obviously, observing trials outside the United States or other English-speaking nations and collecting data from these tribunals can present considerable language and access difficulties. Nonetheless, experimental research simulating adversarial and inquisitorial trial systems may present one solution to this difficulty (see, generally, Weiden, 2009a).

Similarly, another avenue for future research may involve the analysis of comparative juries: whether certain jury systems are more likely to be more efficient or lead to certain outcomes. This may also be an area in which experimental research may prove to be more practical. Related to this, further research could be conducted to examine the role and influence of lay judges in those inquisitorial trial systems that do not use juries. Overall, the examination of trial courts, trial juries, and lay judges may prove to be an area in which considerable progress may be made.

Finally, the continuation of research regarding judicial independence and separation of powers, using primarily formal models, represents an exceptionally promising area and one that should continue to lead to additional generalized theories of judicial behavior. See generally José Maria Maravall and Adam Przeworksi (2003). For example, it may be possible to generate a formal theory of the role of judges in presidential and parliamentary systems and then test those models empirically, using the newly available data in the High Courts Judicial Database (Haynie et al., 2007a).

Overall, the diversity of approaches used by comparative courts scholars, combined with the increasing availability of comparative data and the willingness of scholars to look beyond the borders of the United States, ensures that this subfield will continue to yield new insights into comparative judicial behavior and the judicial process.

VII. Conclusion

As discussed, the subfield of comparative judicial politics is both young and old. The comparative study of courts was one of the earliest subjects of political science research before fading into relative obscurity. However, the rediscovery of comparative judicial research in recent decades has produced a body of work containing numerous insights into the role of courts in varying types of political systems. This new research has provided important findings in the areas of judicial decision making, separation of powers and judicial independence, judicial review, and party capability. At the same time, much work is left to be done in, among other areas, comparative trial courts and procedures, juries, judicial independence, and the role of courts in emerging democracies. However, the vitality and rigor demonstrated in the new wave of comparative courts research bodes very well for the future.

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