Constitutional Review in Central and Eastern Europe
Judicial-Legislative Relations in Comparative Perspective
Edited by Kálmán Pócza
First published 2024 by Routledge
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ISBN: 978-1-032-50660-9 (hbk)
ISBN: 978-1-032-50661-6 (pbk)
ISBN: 978-1-003-39948-3 (ebk)
DOI: 10.4324/9781003399483
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List of Figures vii
List of Tables x
List of Abbreviations xi
List of Contributors xii
1 Constitutional review and judicial-legislative relations in new democracies 1 KÁLMÁN PÓCZA, MÁRTON CSAPODI, GÁBOR
DOBOS AND ATTILA GYULAI
2 The Croatian Constitutional Court: From a potentially powerful court to a court of rejections 28 MONIKA GLAVINA
3 The Czech Constitutional Court: The inconspicuous constrainer 57 KATARÍNA ŠIPULOVÁ AND ALŽBETA KRÁLOVÁ
4 The Estonian Supreme Court: Strength by pragmatic collegiality 86 PALOMA KRÕÕT TUPAY
5 The Hungarian Constitutional Court: Dialogue in practice 114 ATTILA GYULAI, KÁLMÁN PÓCZA AND GÁBOR DOBOS
6 The Latvian Constitutional Court: Dialogue and cooperation among constitutional bodies 142 ANITA RODIŅA AND DITA PLEPA
7 The Lithuanian Constitutional Court: The gradual emergence of a strong guardian 168 DOVILĖ PŪRAITĖ-ANDRIKIENĖ
8 The Polish Constitutional Tribunal: Encountering politics
ARTUR WOŁEK AND IGA JEZIORSKA
9 The Romanian Constitutional Court: Layers of constitutional adjudication
KUTI
10 The Slovak Constitutional Court: The promise of Dworkinian adjudication?
STEUER AND ERIK LÁŠTIC
11 The Slovenian Constitutional Court: Courage in times of political instability
12 Central and Eastern European constitutional courts in comparative perspective 1990–2020
KÁLMÁN PÓCZA, MÁRTON CSAPODI, GÁBOR DOBOS AND ATTILA GYULAI
2.1 Caseload of the Croatian Constitutional Court (1993–2020) 39
2.2 Frequency of the ruling types (1993–2020) (CrCC) 41
2.3 Number and average strength of rulings (1993–2020) (CrCC) 44
2.4 Average strength of rulings by courts (CrCC) 46
2.5 Average strength of rulings by presidents (CrCC) 47
2.6 Number of rulings with at least one dissenting opinion (1993–2020) (CrCC) 48
2.7 Dissenting coalitions (1993–2020) (CrCC) 49
2.8 Number of dissenting opinions and party affiliation (1993–2020) (CrCC) 51
3.1 Frequency of the ruling types (CzCC) 65
3.2 Number and average strength of rulings (1993–2020) (CzCC) 66
3.3 Proportion of rulings with a least one dissenting opinion (CzCC) 78
3.4 Dissenting coalitions (1993–2020) (CzCC) 79
4.1 Frequency of the ruling types (ESC) (1993–2020) 93
4.2 Average strength of rulings (1993–2020) (ESC) 94
4.3 Number of rulings with at least one dissenting opinion (1993–2020) (ESC) 98
4.4 Dissenting coalitions (1993–2020) (ESC) 99
5.1 Number and average strength of rulings (1990–2020) (HCC) 121
5.2 Frequency of the ruling types (HCC) (1990–2020) 123
5.3 Number of rulings with at least one dissenting opinion (1990–2020) (HCC) 124
5.4 Relative strength and frequency of dissenting opinions (HCC) 127
5.5 Dissenting coalitions 1990–2020 (HCC) 128
5.6 Distribution of RLCs among policy fields (HCC) 132
5.7 Time-leg between the promulgation of the law and the decision of the HCC 136
6.1 Number and average strength of rulings (1998–2020) (LaCC) 148
6.2 Frequency of the ruling types (1998–2020) (LaCC) 150
6.3 Number of rulings with at least one dissenting opinion (1998–2020) (LaCC) 154
6.4 Average strength of dissenting opinions by judges (LaCC) 155
6.5 Dissenting coalitions 1998–2020 (LaCC) 157
7.1 Frequency of the ruling types (1998–2020) (LiCC) 175
7.2 Frequency of ruling types by courts (LiCC) 178
7.3 Number and average strength of rulings (1993–2020) (LiCC) 178
7.4 Average strength of rulings by presidents (1993–2020) (ESC) 179
7.5 Number of rulings with at least one dissenting opinion (1993–2020) (LiCC) 186
8.1 Frequency of the ruling types (1993–2020) (PCT) 200
8.2 Number and average strength of rulings (1993–2020) (PCT) 201
8.3 Number of rulings with at least one dissenting opinion (1993–2020) (PCT) 202
8.4 Dissenting coalitions 1993–2020 (PCT) 204
9.1 Number of decisions and rulings (1992–2020) (RCC) 225
9.2 Number and average strength of rulings (1992–2020) (RCC) 228
9.3 Number and average strength of rulings (a priori vs. a posteriori review) (1992–2020) (RCC) 230
9.4 Frequency of the ruling types (1992–2020) (RCC) 233
9.5 Frequency of the ruling types (a priori review) (1992–2020) (RCC)
9.6 Average strength of rulings by judges (RCC)
9.7 Number of rulings with at least one dissenting opinion (1992–2020) (RCC)
9.8 Dissenting coalitions 1992–2020 (RCC) 239
10.1 Number and average strength of rulings (1993–2020) (SCC) 259
10.2 Number of rulings with at least one dissenting opinion (1993–2020) (SCC)
10.3 Average strength of rulings by judges (SCC)
10.4 Frequency of the ruling types (1993–2020) (SCC)
10.5 Dissenting coalitions 1993–2020 (SCC)
11.1 Number of decisions and rulings (1991–2020) (SloCC)
11.2 Number and average strength of rulings (1991–2020) (SloCC)
11.3 Frequency of the ruling types (1991–2020) (SloCC)
11.4 Number of rulings with at least one dissenting opinion (1991–2020) (SloCC)
11.5 Proportion and strength of dissenting opinions (SloCC)
11.6 Dissenting coalitions 1991–2020 (SloCC)
12.1 Average strength and proportion of restraining rulings (CEE)
12.2 Average strength of rulings (CEE vs. WE)
12.3 Cumulative ratio of the two most frequent provision types (REJ + SUBST)
12.4 Frequency of ruling types (all countries)
12.5 Rulings with at least one dissenting opinion (CEE vs. WE)
12.6 Average strength of rulings (1990–2020) (CrCC; HCC; SCC; SloCC)
12.7 Average strength of rulings (1990–2020) (ESC; PCT; RCC) 312
12.8 Average strength of rulings (1990–2020) (CzCC; LaCC; LiCC) 313
12.9 Proportion of rulings with at least one dissenting opinion (1990–2020) (CzCC; LiCC; SloCC) 316
12.10 Proportion of rulings with at least one dissenting opinion (1990–2020) (CrCC; PCC) 317
12.11 Proportion of rulings with at least one dissenting opinion (1990–2020) (ESC; HCC; LaCC; RCC; SCC) 318
1.1 Components and elements of rulings
1.2 Possible combination of the elements of judicial rulings
1.3 Weighting of the elements of rulings
2.1 Number of dissenting opinions per judges
3.1 Caseload of the Czech Constitutional Court (1993–2020)
3.2 Professional background of the judges (CzCC)
4.1 Number of decisions and rulings (ESC)
5.1 Distribution of RLCs by electoral cycles (HCC)
5.2 Modified attitudinal model of judicial behaviour by dominant policy fields (HCC)
7.1 Three periods of the LiCC
10.1 The SCC’s and the Slovak executive’s terms in office
10.2 Selected basic information about the judges of the “fourth SCC”
10.3 Selected statistics of SCC petitions and decisions
12.1 Number of decisions, rulings, and dissenting opinions (all countries)
12.2 Proportion of rulings with at least one dissenting opinion (all countries)
Abbreviations
CrCC: Croatian Constitutional Court
CzCC: Czech Constitutional Court
ESC: Estonian Supreme Court
HCC: Hungarian Constitutional Court
LaCC: Latvian Constitutional Court
LiCC: Lithuanian Constitutional Court
PCT: Polish Constitutional Tribunal
RCC: Romanian Constitutional Court
SCC: Slovak Constitutional Court
SloCC: Slovenian Constitutional Court
Contributors
Polona Batagelj is an assistant at the European Faculty of Law New University, where she earned her Ph.D. She was a member of the research group on a project titled Ideology at Courts: The Influence of Judges’ World-views on Their Decisions, focusing on how the ideological profiles of judges influence their performance. As part of this research, she co-authored various chapters in the recently published scientific monograph, Ideologija na sodiščih (Avbelj, Matej, et al. 2021. Nova Gorica: Nova univerza). Her research interests focus on European Union Law and sports law with a recent publication: “Reforms of the anti-doping system in the light of (better) protection of the athletes’ human rights” (Dignitas 2021 (89/90): 145–184).
Márton Csapodi is a Ph.D. student at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University and a research fellow at the Center for Constitutional Politics of the Mathias Corvinus Collegium. He obtained his master’s degree in law from the Pázmány Péter Catholic University. He is currently doing research on constitutional adjudication, constitutional pluralism, and constitutional judiciaries in the EU.
Gábor Dobos is a research fellow at the Centre for Social Sciences (Budapest) and at the Ludovika University of Public Service (Budapest). He is primarily interested in local politics and constitutional adjudication. His latest publications include: “Do Constitutional Courts Restrict Government Policy?” in East European Politics 39 (3), 2022 (with Kálmán Pócza, Attila Gyulai, and Zsófia Papp); “Hungary: The expansion and the limits of national politics at the local level” in Gendźwiłł A. et al. (eds.) The Routledge Handbook of Local Elections and Voting in Europe. Routledge, 2022; and “Municipal splits and hidden amalgamations in Hungary” in Miscellanea Geographica –Regional Studies on Development, 25 (2), 2021.
Monika Glavina is an assistant professor of European Union Law at Erasmus School of Law, Erasmus University Rotterdam, and a visiting professor at Paris School of International Affairs, Sciences Po. In addition, she is a member of the Editorial Board of Erasmus Law Review and a member of the Steering Committee of the ECPR Law and Courts Standing Group
Contributors xiii
She obtained her Ph.D. at KU Leuven University and worked as a postdoc on two large-scale projects: the ERC-granted EUTHORITY Project (KU Leuven) and the Horizon-2020 TiGRE Project (University of Antwerp). Her areas of research include empirical legal research, judicial politics, judicial behaviour, judicial protection in the EU, and trust in courts. Her most recent publications include: “Why passive? Exploring national judges’ motives for not requesting preliminary rulings” (with Karin Leijon, in Maastricht Journal of European and Comparative Law); “The Reality of National Judges as EU Law Judges: Knowledge, Experiences and Attitudes of Lower Court Judges in Slovenia and Croatia” (in Croatian Yearbook of European Law & Policy); and “The Voices of European Law: Legislators, Judges and Law Professors” (with Arthur Dyevre and Michal Ovádek, in German Law Journal).
Attila Gyulai is a senior research fellow at the Centre for Social Sciences –Institute for Political Science (TK PTI) in Budapest and an associate professor at the Corvinus University of Budapest. He is the principal investigator of the “Political Normativity” project at TK PTI. His most recent publications include: “Do Constitutional Courts Restrict Government Policy?” in East European Politics 39 (3), 2022 (with Kálmán Pócza, Gábor Dobos and Zsófia Papp); The Orbán regime: Plebiscitary leader democracy in the making (Routledge, 2020, with András Körösényi and Gábor Illés); “It’s a fact: the buribunks are the enemies of the political” in Griffith Law Review 28 (2), 2019; and “How to Measure the Strength of Judicial Decisions: A Methodological Framework” in German Law Journal 18 (2017):6 (together with Gábor Dobos and Kálmán Pócza).
Iga Jeziorska is an assistant professor the Corvinus University of Budapest. Her research interests focus on illicit drug policies and the role of nongovernmental organizations in public service delivery in this area. Her most recent publications include: “A Sin or a Health Issue? Morality Policy Framing and the State of Harm Reduction in East-Central Europe” in Intersections 7(1):97; “Collaborative Governance Regimes in Illiberal Democracies: A Comparative Case of Drug Harm Reduction Policy in Central-Eastern Europe” in Transylvanian Review of Administrative Sciences 62 E/2021 (62 E):60; and “Understanding drivers of illiberal entrenchment at critical junctures: institutional responses to COVID-19 in Hungary and Poland” in International Review of Administrative Sciences 87(3).
Alžbeta Králová is an assistant professor at the Department of Constitutional Law and Political Sciences of the Faculty of Law of Masaryk University in Brno. Her research interests focus on human rights, asylum and migration law, effective remedies, judicial review, and constitutional adjudication. She participated in projects related to the application of EU law by national courts and the influence of EU law on the system of remedies in asylum and migration law. She headed the Department of Analytics and
Comparative Law of the Supreme Court of the Czech Republic and works for the Ombudsman´s Office. Her publications include “Legal Remedies in Asylum and Immigration Law: The Balance Between Effectiveness and Procedural Autonomy?” in Central European Public Administration Review (2018).
Csongor Kuti is an associate professor at the University of Arts Târgu-Mureş, Romania. SJD in comparative constituţional law and LL.M. in human rights, both obtained at the Central European University, Budapest. His latest publications include: Five Essays on the Freedom of Speech (2020); “Between a Rock and a Hard Place: Constituţional Conflict Cases before the Romanian Constituţional Court” in Hungarian Journal of Legal Studies 60(3), 2019; and “The Romanian Constitutional Court: Muddling Through Democratic Transition” in Constitutional Politics and the Judiciary: Decision-making in Central and Eastern Europe (London/New York: Routledge, 2019, ed.: Kálmán Pócza).
Erik Láštic is an associate professor at the Department of Political Science, Faculty of Arts at the Comenius University in Bratislava, Slovakia. His research focuses on various aspects of politics and policymaking in Central and Eastern Europe, including legislative politics and referendums. He has published dozens of articles and chapters domestically and internationally. Selected publications include: “Into the Labyrinth: The Rewards for High Public Office in Slovakia” (with Katarína Staroňová) in B. Guy Peters, Marleen Brans (eds.): Rewards for High Public Office in Europe and North America (London: Routledge, 2012) and “If It Works, Fine, If Not, So What? Initiatives in Slovakia” in Maija Setälä and Theo Schiller (eds.): Citizens’ Initiatives in Europe: Procedures and Consequences of Agenda-Setting by Citizens (2012).
Dita Plepa studied law at the University of Latvia. In 2011 she was awarded a master’s degree in law. Her research focuses on constitutional law and state law, as well as issues of legal theory. Currently, she is a doctoral student at the University of Latvia, Faculty of Law. In 2008 she started working as the senior desk officer with the Department of the Court of Justice of the European Union, Ministry of Justice of the Republic of Latvia. Since 2009 she has been working at the Constitutional Court of the Republic of Latvia. In addition to this, since 2012 she has started teaching “Legal Methods” at the Faculty of Law, Riga Stradins University.
Kálmán Pócza is a senior research fellow at the Ludovika University of Public Service in Budapest (Research Institute for Government and Politics) and Head of the Center for Constitutional Politics at the Mathias Corvinus Collegium. He is the Principal Investigator of the JUDICON-EU project. Previously, he was a senior research fellow at the Institute for Political Science of the Hungarian Academy of Sciences, Associate Professor at the Pázmány Péter Catholic University, and visiting research fellow at the
Contributors xv
University of Notre Dame, University of Tübingen, and the University of Fribourg. His most recent publications include: “Do Constitutional Courts Restrict Government Policy?” in East European Politics 39 (3), 2022 (together with Gábor Dobos, Attila Gyulai, and Zsófia Papp); Constitutional Politics and the Judiciary: Decision-making in Central and Eastern Europe (London/New York: Routledge, 2019, editor); and “How to Measure the Strength of Judicial Decisions: A Methodological Framework” in German Law Journal 18(2017):6 (together with Gábor Dobos and Attila Gyulai).
Dovilė Pūraitė-Andrikienė is a senior researcher at the Law Institute of the Lithuanian Centre for Social Sciences and the Head of the Legal System Research Department of this Institute. She is an expert on Lithuanian and comparative constitutional law, constitutional justice procedure, and human rights. Her most recent publications include: Legal Protection of Vulnerable Groups in Lithuania, Latvia, Estonia, and Poland (2022, editor and co-authored with Agnė Limantė); “Individual constitutional complaints in Lithuania: an effective remedy to be exhausted before applying to the European Court of Human Rights?” in Baltic Journal of Law & Politics No. 15, Issue 1 (2022); Constitutional Complaints in Lithuania as a Tool for the Protection of Human Rights: monograph (2022); “The Development and Prospects of the Lithuanian Constitutional Justice Model” in Švedas. G.; Murauskas, D. (eds.), Legal Developments During 30 Years of Lithuanian Independence (2021); and “The Legal Force of Conclusions by Lithuanian Constitutional Court and the issue of their (Non-)finality: Has the Time Come to Amend the Constitution?” in Review of Central and East European Law No. 44, Issue 2(2019). She is also an associate professor at the Faculty of Law of Vilnius University, where she teaches constitutional law and European Union law. She is also a member of the Young Academy of Lithuanian Academy of Sciences.
Anita Rodiņa is currently judge at the Latvian Constitutional Court and an associate professor at the University of Latvia. Before being elected to the bench of the Constitutional Court of Latvia she was Dean of the Law Faculty and a member of the senate at the University of Latvia. She has been a member of the Committee for Improvement of the Legal Environment established at the State President’s office. She is active in several international platforms like the European Public Law Organization; she is a founder of the public analytical centre “Constitutional Culture” and a member of scientific committees of legal journals abroad. At the Faculty of Law, she teaches constitutional law and constitutional court procedure law. Her most recent publications include: “Protection of Fundamental Human Rights during COVID-19 Pandemic: Case of Latvia” in International Organizations and State’s Response to COVID-19 (2021); “Appointment of the Constitutional Court Justice: Some Issues” in Law, No. 14, 2021; Le e-Saeima, l’un des premiers parlements au monde a travailler a distance.
L’impact de la crise sanitaire sur le fonctionnement des parlements ne Europe (Fondation Robert Schuman, 2021; together with I. Lībiņa-Eggnere); “Foreign Materials in the Judgments of the Constitutional Court of the Republic of Latvia” in Judicial Cosmopolitanism. The Use of Foreign Law in Contemporary Constitutional Systems (2019); and “The Constitutional Court of the Republic of Latvia as a Law Maker: Current Practice” in Judicial Law-Making in European Constitutional Courts (London, New York: Routledge 2020, together with A. Spale).
Katarína Šipulová is the Director of the Judicial Studies Institute at Masaryk University’s Faculty of Law. She earned her Ph.D. at the Faculty of Social Studies, Department of European Studies, Masaryk University, Brno, and the MSt in Socio-Legal Research at the University of Oxford. Her main areas of interest are judicial governance, transitional justice, and democratization of the Central and Eastern European countries. She has been an active member of several research projects dealing with human rights as well as international law and its impact on domestic jurisprudence (e.g. international human rights treaties in national legal systems, implementation of ECtHR case law against the Czech Republic), including both ERC research grants led by David Kosař. She serves as a member of the ECPR Law and Courts Standing Group Steering Committee (2018–now), the ICON-S CEE Chapter (2018–now), and the Oxford Global Society (2021–now). Her latest publications include: “Comparative Court-Packing” ( International Journal of Constitutional Law , with D. Kosař); “Judicial Self-Governance Index: Towards Better Understanding of the Role of Judges in Governing the Judiciary” ( Regulation and Governance , with S. Spáč, D. Kosař, T. Papoušková and V. Derka); and “Between Human Rights and Transitional Justice: The Dilemma of Constitutional Courts in Post-Communist Central Europe” ( Europe-Asia Studies , with H. Smekal).
Max Steuer is an assistant professor at the Department of Political Science, Faculty of Arts at the Comenius University in Bratislava, Slovakia, and an associate professor at the Jindal Global Law School, O.P. Jindal Global University, India. His research interests focus on questions of democracy protection, constitutional adjudication in Central Europe, constitutionalism in the European Union, and freedom of expression. His interdisciplinary work has appeared in edited collections and encyclopaedias and in journals in political science, law, sociology, and European studies including: European Constitutional Law Review, The International Journal of Human Rights, and Review of Central and East European Law. A member of several academic associations in political science and public law, such as the International Society of Public Law and its Central and Eastern European Chapter (Founding Advisory Board), he received several academic awards, including a Fulbright Graduate Scholarship.
Contributors xvii
Paloma Krõõt Tupay teaches constitutional law at the University of Tartu in Estonia. In addition to questions of democratic state architecture, she focuses her research activities on issues of data protection, e-government, and digital constitutionalism. Early in 2023, Artificial Intelligence and Machine Learning Powered Public Service Delivery in Estonia. Opportunities and Legal Challenges, a book she co-authored with Martin Ebers, was published. Currently, she is working on the completion of a constitutional law textbook. Previously, she has worked as a legal advisor to the Estonian President and also to the Minister of Interior. Recent publications include: “Has the GDPR killed e-government? The ‘once-only’ principle vs. the principle of purpose limitation” in International Data Privacy Law 2023 (together with Monika Mikiver) and “Estonia, the Digital Nation: Reflections on a Digital Citizen’s Rights in the European Union” in European Data Protection Law Review, 6 (2) 2020, 294−300.
Artur Wołek is a public policy and administration professor and former vicerector at the Jesuit University of Krakow Ignatianum. Previously he taught at the Warsaw School of Economics and WSB-National-Louis University. In the 1990s, he also worked as an advisor with the Prime Minister’s Office for Constitutional Reform and as the director at the Windsor Group, a think tank. Books authored include: Słabe państwo [A Weak State] (2012) and Demokracja nieformalna. Konstytucjonalizm i rzeczywiste reguły polityki w Europie Środkowej po 1989 r. [Informal Politics. Constitutionalism and Effective Rules of Politics in Central Europe] (2002). He also edited a major handbook Public Policies (2021); Nieodrobiona lekcja. Polityki publiczne w Czechach i Polsce [The Lesson Not Done. Public Policies in Poland and the Czech Republic] with Ondřej Krutílek (2013) and Udana transformacja na peryferiach? [Successful Transformation on the Peripheries?] with Justinas Dementavičius (2013).
1 Constitutional review and judicial-legislative relations in new democracies
Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai
1.1 Introduction: taking courts seriously
The least dangerous branch. No purse, no sword. According to the classical and well-known narratives of the two Alexanders, Hamilton in The Federalist No. 78 and, following in his footsteps, Bickel (1962), the judiciary is definitely a harmless institution, which might have authority (auctoritas) but whose power (potestas) depends on the other two branches of government, which possess the purse and the sword. Consequently, Hamilton argued, no one should fear the judicial power; it should be rather considered “as the bulwark of a limited Constitution against legislative encroachments”.
Judicial supremacy, rule of judges, and juristocracy. Over the past four decades, these terms, referring to recently emerging phenomena, have been used either simply analytically or critically by several authors arguing against the global expansion of judicial power. The central points of criticism are the legitimacy deficit, the problem of the counter-majoritarian difficulty, and the recurring charge of judicial activism (to refer once again to terms widely used in legal scholarship).
While arguments against judicial review were formulated in the United States quite early, the flip side of the story was less well known in Europe for several decades. Criticism in the US and Europe had its origins in political conflicts that arose in the wake of highly contested decisions of constitutional courts, but scholarly reflections that normatively (and plausibly) argued against the expansion of judicial power were absent not only in Central and Eastern Europe (CEE) but, with the obvious exception of the United Kingdom, also in Western Europe, where constitutional courts became crucial political actors after two waves of democratization.
Constitutional courts in Western Europe, originally established either as bulwarks against the violation of fundamental rights or (more often) to settle disputes between different levels of government in federal states, have slowly but steadily moved to the centre stage of domestic politics. They faced only occasional backlashes because judges displayed passive virtues (again, explained in detail by Alexander Bickel), because no politicians dared to challenge the institutions created as bulwarks against totalitarianism or simply because they
Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai
were sometimes regarded as useful institutions to which politicians could turn to have judges decide thorny questions with potentially disastrous political consequences for elected politicians (a special kind of blame shifting).
At first glance, the story in Central and Eastern Europe began similarly, or more precisely, even more promisingly. In contrast to Western Europe –where constitutional courts played a decisive role only in countries with an authoritarian past and the “judicialization of mega-political issues” (Hirschl 2008) was almost completely absent in the UK, the Benelux countries, and the Scandinavian countries – judicial review of legislative and executive acts was established in all countries of the CEE region without exception. Copying a template (Parau 2018) and giving judges more power seemed like a good idea, because no one really expected a rebellion against governing by the judiciary (Scheppele 2003). In fact, the first constitutional courts established their authority surprisingly quickly, and since politicians in Central and Eastern Europe were hardly aware of the potential power of judicial review, constitutional adjudication based on judicial review became a success story that is proudly referred to in legal scholarship.
However, from today’s perspective and with the hindsight of new generations, one could say that the picture in the CEE region is rather mixed. While some courts in Central and Eastern Europe managed to avoid massive political interference in their work and preserved their relative independence (e.g. the Czech Constitutional Court), others faced either milder forms of pushback or serious backlashes (Madsen, Cebulak, and Wiebusch 2018) from political actors who claimed that judges (and not elected politicians) govern their country. Several political actors have argued that constitutional courts have assumed too much power and that politics has been extremely judicialized. Political actions against courts in the CEE region have ranged from verbal criticism of judicial decisions and constitutional courts in general to (un)successful attempts of court-packing and a total reshuffle of the court, showing that politicians took the courts seriously as centres of power that can significantly hinder them achieving their goals.
1.2 The research puzzle
Nevertheless, the question as to what extent this aggregation of power and authority has constrained the dominant political actors, in fact, has never been examined accurately and systematically in the literature. The twin volumes, Constitutional Review in Central and Eastern Europe and Constitutional Review in Western Europe, are trying to fill this gap in the literature and deal with the practice of constitutional adjudication in Europe, mainly focusing on the puzzling relationship between constitutional courts and legislatures.
It should be stressed, however, that these volumes do not concentrate either on the theory of judicial or legislative supremacy or on institutional design, which of course can affect both constitutional adjudication and the relationship between these institutions. Moreover, they deliberately avoid philosophical questions about the legitimacy of judicial review, and their main
3 approach is certainly not in line with classical works of (European) legal scholarship. They do not aim to find an answer to the question of supremacy, nor do they approach the question of the relationship between the judiciary and the legislature from a purely legalistic point of view. Instead of philosophical, theoretical, and purely legal questions, we have chosen to explore empirically and systematically the practice of constitutional adjudication in Europe, with particular attention to the diversity of judicial decisions and the strength of the constraint they exert on legislatures. Thus, this work is more in the realm of empirical legal research, which has a rich tradition in American legal research but is relatively unknown in the European context.1
1.3 The research questions
Both volumes, Constitutional Review in Central and Eastern Europe and Constitutional Review in Western Europe, are products of the JUDICON-EU research project.2 The project formulated two aims: first, we developed a new methodology to capture diversity and measure the strength of judicial decisions. Second, based on this coherent methodology and the database created by the project, we studied the diversity and strength of judicial decisions of the European constitutional courts. Based on these objectives, we formulated two research questions concerning the diversity and strength of judicial decisions: (1) how differentiated are the decisions of European constitutional courts?; and (2) to what extent have these differentiated decisions of European constitutional courts constrained the legislature’s room for manoeuvre?
Based on the analysis of the practice of the Hungarian Constitutional Court, we assumed that other European constitutional courts also elaborated (or adopted from the practice of their counterparts) a variety of ruling types and declared legislative omissions or procedural unconstitutionality, complete or partial, ex tunc or pro futuro annulments, determined constitutional requirements or prescriptions how to remedy the unconstitutionality. Mapping this diversity of judicial decisions is one of the main aims of both volumes. Although in legal terminology the strength of a judicial decision seems to be a concept rather difficult to interpret, strength as used in this research
1 It should be stressed, however, that most recently several initiatives have been launched which indicate that the field of empirical legal studies is getting more and more popular even in Europe. The first and the second Conference on Empirical Legal Studies in Europe held in Amsterdam (2016) and in Leuven (2018), as well as the activity of Law and Court Standing Group of the European Consortium of Political Research (ECPR), along with several research projects at various European Universities like JUSTIN (Masaryk University Brno), ICOURTS (University of Copenhagen), or PLURICOURTS (University of Oslo) are excellent examples which demonstrate that various methods of empirical legal studies are nowadays more widespread in the European research community than a few years ago.
2 The JUDICON-EU research project (2020–2022) has been funded by the Ludovika University of Public Service. For more details: https://judiconeu.uni-nke.hu/. We are indebted to all interns of the project and especially to Adrienn Vajda, who helped us in editing all figures and tables of the volume.
Kálmán
Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai
project shows the extent to which constitutional courts constrain the room for manoeuvre of another constitutional organ (in this research project, the legislatures). While all decisions of a constitutional court have the same legal binding force, they may reduce the scope of legislative activities to varying degrees. For example, in cases described as procedural unconstitutionality, legislatures made “only” a procedural mistake in the adaptation of the bill. After having corrected this procedural flaw of the legislative process, they might adopt the same law, often even with the same content. On the other hand, in cases of substantive unconstitutionality, the regulation should be changed substantively, i.e. its content should be transformed to meet the constitutionality criteria. In the second case, constitutional courts significantly narrow down the scope of legislative activities, since the court has found the content, rather than the way the bill was adopted, unconstitutional. Consequently, a decision based on substantive unconstitutionality is stronger than one based on procedural unconstitutionality because it might limit the legislature’s room for manoeuvre more heavily.
It is important to note that by measuring the strength of judicial decisions, on no account do we want to measure the impact of judicial decisions. The term strength as used in our research might be best described with a boxing metaphor: measuring strength is measuring the power of a punch, and by no means the kind of impact this punch had on the other boxer. It is not considered whether this opponent could have side-stepped or is only slightly shaken, although it was a very strong punch. To put it briefly, strength is not measured by the intensity of the impact of a decision.
In what follows, we first briefly give an overview on the existing literature on constitutional review in Central and Eastern Europe, focusing on judiciallegislative relations (Section 1.4). Second, we summarize the methodology of the JUDICON-EU research project, which is essential for understanding the country studies included in both volumes (Section 1.5). Third, we clarify the structure of the country studies since we asked the authors to follow the same coherent structure in writing the chapters (Section 1.6). In addition to the coherent methodology of the research project, the semi-structured chapters based on predefined questions facilitate the comparison of the performance of European constitutional courts with regard the question of their constraint on the legislature. Nonetheless, we have also included a special comparative chapter at the end of both volumes that attempts to provide a first (and rather preliminary) answer to the question of whether institutional design, political context, or event-related variables influence the strength of court decisions or dissenting opinions.
1.4 Literature overview
1.4.1 Institutional
design
There is an extensive literature on the development and origins of the institutional design of European constitutional review, with a significant body of research on Central and Eastern European countries’ constitutional design,
including comparative analysis of institutional patterns, origins, and evolution of constitutional courts in post-communist countries established during the democratic transition (Brunner 1992; Utter and Lundsgaard 1993; Magalhães 1999; Smithey and Ishiyama 2000; Procházka 2002; De Visser 2014; Ernits et al. 2022). In this context, Sadurski’s work is particularly significant (Sadurski 2002, 2014). While Schwartz has also conducted extensive historical and comparative research in this field (Schwartz 1992, 1998, 2000), Parau provides a comparative analysis of the institutional pattern and the circumstances surrounding the emergence of constitutional judiciaries in CEE from a specific political science perspective, seeing the empowerment of judges as the self-empowerment of transnational elites (Parau 2018).
One prominent approach to studying the activity and functioning of constitutional courts is from the perspective of federalism, political centralization, or decentralization. In addition to single-country studies (Benz 2017; Dalla Pellegrina et al. 2017; Popelier and Bielen 2019), Vaubel’s cross-country research, including European countries, examines how specific features of constitutional adjudication, such as the degree of independence, difficulty of amending the constitution, and length of time a constitutional court has been in existence, relate to the degree of political centralization (Vaubel 2009). Popelier et al. (2013) also analysed the effects of judicial decisions in time.
1.4.2 External factors: the political context
Some examine the functioning of constitutional justice in the light of contextual, external factors. For example, Hönnige argued that judges make decisions according to their political preferences and that this can be measured by party affiliation (although the investigation covered two constitutional courts from Western Europe, not from CEE) (Hönnige 2009). This somewhat nuances the picture that European constitutional jurisprudence is not (or is much less) politicized than in the US (Forejohn and Pasquino 2004). Hein and Ewert used quantitative methods to investigate the extent to which European constitutional courts may be politicized in three countries (Germany, Bulgaria, Portugal) and concluded that the type of procedure has a strong influence on the degree of politicization (the extent to which extra-legal considerations play a role in the decision). For example, abstract review is more likely to be politicized than individual constitutional complaints (Hein and Ewert 2016). Garoupa and Ginsburg have examined how judges respond to different “audiences” (e.g. the public, politicians, lawyers) in terms of reputation (Garoupa and Ginsburg 2015) and how the presence of a supreme court coexisting with a Kelsenianstyle constitutional judiciary might affect the internal fragmentation of the constitutional court (Garoupa and Ginsburg 2011). Garlicki has also analysed the power dynamics and tensions between centralized constitutional courts and coexisting supreme courts from a comparative perspective (Garlicki 2007).
Vanberg classified the contextual factors of the political system that lead to the preservation of the authority of constitutional courts into two groups according to whether the court’s authority benefits policy-makers
Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai (endogenous explanation) or would only come at a too high price if it were undermined or eroded (exogenous explanation) (Vanberg 2015). Based on the German Federal Constitutional Court, Vanberg used a combination of quantitative and qualitative methods to investigate the impact of political factors such as transparency and public support on the decisions of constitutional courts. He found, for example, that low levels of transparency (e.g. lack of public attention, complexity of the case) reduce the likelihood of a law being annulled (Vanberg 2004). Bricker and Wondreys (2018) examined the relationship between public opinion and constitutional review through a quantified analysis of opposition-initiated constitutional court decisions in four countries (Germany, Poland, Slovenia, Czech Republic) and concluded that it may not be possible to see constitutional courts as exclusively countermajoritarian institutions. Indeed, their results show that constitutional courts are responsive to changes in public preferences. Public preferences can change over the course of a term, or they can support the opposition in specific policy areas, and a constitutional court can be receptive to public opinion and shape public policy accordingly (Bricker and Wondreys 2018). Garoupa argues that, overall, empirical research on constitutional review clearly points in the direction of constitutional courts being politicized in the sense that the behaviour of judges can be predicted along ideological lines, while other contextual factors can also be identified (Garoupa 2019). Herron and Randazzo (2003) conclude, in the context of post-communist constitutional courts, that the formal strength of judicial review is less, and external circumstances (e.g. economic situation) are more influential on judges’ decision to overturn legislation (Herron and Randazzo 2003).
However, based on his quantitative analysis of post-communist constitutional courts, Bumin (2017) concluded that for the activism of judicial review, the institutional development of the court seems more determining than external factors, although his results also showed correlation between the activism of the constitutional court and the political system or even the economic situation. Bumin quantified the extent of judicial activism by compiling data on the constitutional court’s jurisprudence in 19 post-communist countries, looking only at the “on the merits” decisions and the constitutionalityunconstitutionality dichotomy in the outcome of the decision (Bumin 2017). Taking the Bulgarian Constitutional Court as a case study, Bagashka and Tiede examined the influence that the attorney general, alongside other political actors, can have on the constitutional court’s decision-making (Bagashka and Tiede 2021). External factors influencing constitutional jurisprudence can also include decisions of other countries’ constitutional courts, and there is empirical research (combining qualitative and quantitative methods) in the literature on the extent to which European countries use decisions of foreign courts in their own practice (Groppi and Ponthoreau 2013).
A special aspect of research on constitutional adjudication in Central and Eastern Europe is often the role of constitutional review in the democratic transition and in strengthening and maintaining democracy (Epstein, Knight,
Constitutional review and judicial-legislative relations 7 and Shvetsova 2001; Jovanović 2015). Although by no means exclusively in the context of the post-communist region, but from a global perspective, Daly has done extensive work exploring the role courts play in democratization, encouraging to rethink what tasks we entrust to the courts in the process of democracy building (Daly 2017). However, constitutional review is now being examined not only in the context of building, but also in the context of dismantling democracy: most recently, one can find studies on Hungary and Poland that aim to examine the role of constitutional courts in so-called illiberal political regimes, often claiming that the political branches of power are abusive towards the constitutional judiciary (Castillo-Ortiz 2019; Drinóczi and Bień-Kacała 2019; Dixon and Landau 2021; Kovalčík 2022).
1.4.3 Internal dynamics: dissents
Some studies focus on the internal dynamics of constitutional courts, which, due to institutional design, means examination of judicial dissents where possible. Kelemen has done extensive comparative work on the use of dissents in European constitutional review (Kelemen 2013, 2018). Hein and Ewert have used quantitative analysis based on the dissenting ratio of constitutional court decisions in order to investigate the extent to which decisions are politicized (Hein and Ewert 2016). Bricker has carried out a large-scale study combining qualitative and quantitative methods for the German and some Eastern European (Poland, Latvia, Slovenia, Czech Republic) constitutional courts. His research was twofold: on the one hand, he investigated the influence of various contextual factors on the tendency of a constitutional judge to issue a dissenting opinion, and on the other hand, he examined the impact of dissenting opinions on the quality of the resulting decision (Bricker 2017).
Related to internal dynamics, a separate empirical research area is the study of constitutional court reasoning from a comparative perspective. Jakab, Dyevre, and Itzcovich (2017) have made a serious attempt at a comprehensive comparative mapping of constitutional court reasoning, using both qualitative and quantitative methods based on “leading judgments” drawn from selected countries (Jakab, Dyevre, and Itzcovich 2017).
1.4.4
Judicial-legislative relations
By focusing more closely on the research question of the present volume, we find that a long-established type of qualitative approach is examining the impact of constitutional courts on the policy-making process and policy-outcome. It thus already relates to the relationship and dynamics of constitutional review and the legislature, although there is also research that seeks to measure specifically the impact of constitutional review on the quality of policy outcome (Feld and Voigt 2003).
In terms of the relationship between constitutional review and the legislature, earlier literature naturally focuses on Western Europe (most prominently
Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai
the work of Stone Sweet from the perspective of comparative judicial politics) (Stone Sweet 1990). Regarding the dynamics of constitutional review and legislature, he identified the constitutional judiciary as the third legislative chamber, with regard to both institutional design and empirical experience in specific policy areas (Shapiro and Stone 1994). Stone Sweet has concluded that the entry of constitutional review into the legislative process has caused the death of the legislative sovereignty, with governance taking place alongside or in competition with judges (Stone Sweet 2002, 2012).
Brewer-Carías also finds in his comprehensive comparative work based on national reports of European (and non-European) countries that constitutional courts have acquired a role that is most closely associated with the legislature or the constituent power (Brewer-Carías 2011). Taking the “constitutional courts as legislators” approach as a starting point, Florczak-Wątor has edited a volume of studies on the law-making activities of constitutional courts in Western European and Central and Eastern European countries (Florczak-Wątor 2020). Sadurski addressed the impact of the constitutional courts in CEE countries on the legislative process, approaching the strength of constitutional court decisions by examining the structure of the legislative process, suggesting that some features of this process (e.g. political fragmentation) are decisive for the degree of conflict between the constitutional courts and the legislature (Sadurski 2014).
The concept of a “veto player” has also emerged in the context of a gametheory-based conceptualization of the role of constitutional review in legislation. Although the term was first introduced in the context of studies on Western European courts, as a general theorization of constitutional review, it is also worth mentioning in the context of CEE countries. Volcansek proposed this approach based on the Italian Constitutional Court’s jurisprudence (Volcansek 2001), later Hönnige and Brouard nuanced the picture, if not on the Italian, but on the role of the French and German constitutional courts. Using quantitative methods, they concluded that they play the role of a veto player only under certain conditions, and their role may be influenced by, for example, the legislative procedure or the ideological composition of the court (Brouard and Hönnige 2017). However, Tsebelis, for example, did not count (constitutional) judges as veto players (because they are absorbed by other political veto players) but added that they could be included in this role under certain conditions (Tsebelis 2002).
Lijphart conceptualized judicial review as part of a “consensus model of democracy” and also attempted to group 36 countries of the world (including a significant proportion of Western European countries) according to the strength of judicial review. He sets up four groups, the first group comprising those lacking judicial review. Those with judicial review are classified by Lijphart into “strong”, “medium-strength”, or “weak” categories based on the “degrees of activism in the assertion of this power” (Lijphart 2012). Vanberg used game-theory analysis to conceptualize the relationship between abstract judicial review and legislation, how different judicial behaviours influence the
behaviour of the legislative majority, while the latter aims to ensure that legislation passes abstract review or that the opposition does not initiate the review process. Vanberg’s results show that abstract review fits Lijphart’s model of consensus democracy only when the court is not overly deferential. If it is somewhat restrictive, then legislative self-limitation is directed towards avoiding nullification by the constitutional review process, but if it is very restrictive, self-limitation means taking into account the opposition’s viewpoint in order to avoid them initiating the review (Vanberg 1998).
In terms of the literature of empirical research on European constitutional courts, the parallel work of legal and political science is clearly visible, which, according to Garoupa, has moved closer together than the rigid separation that existed before. Garoupa has also systematized the English-language literature using quantitative methods in research on constitutional courts, most of them of course being single-country studies (Garoupa 2020). Garoupa and Bagashka draw attention to three prominent difficulties with empirical research on constitutional courts: the first is the availability (and processing, coding) of data; the second is the openness of the constitutional law scholarly community in this direction; and the third is the fact that such empirical research is not always popular with constitutional courts (Garoupa and Bagashka 2021).
Given that existing literature has not elaborated a consistent methodology for comparing the performance of constitutional courts, the JUDICON-EU research project developed a methodological framework for measuring the strength of constitutional court decisions and for mapping the relationship between constitutional courts and the legislature. In the next section, we describe this new methodology, which served as the analytical framework for all country studies in this volume.
1.5 Research methodology
A constitutional court decision is a complex piece of judicial text which cannot be quantified unless disaggregated into smaller yet distinct and meaningful units. Neglecting the fact that one judicial decision frequently consists of several rulings might seriously distort any kind of empirical legal research since this leads to an unjustified and unacceptable aggregation of units of observations. A decision issued under a single identification number consists of one or more rulings, references to various legal documents (laws, earlier decisions issued by lower courts, etc.), and a more or less detailed justification. Within the same decision one ruling might reject a motion dealing with certain legal regulations while another ruling in the same decision might declare unconstitutional some other parts of the same (or another) legal regulation. The decision of the court might also contain a ruling that declares an ex nunc procedural unconstitutionality annulling a whole law, while another ruling of the same decision declares ex tunc substantial unconstitutionality of a paragraph of a different legislative act. Added to these, decisions might be supplemented by dissenting opinions if judges disagree with the majority of the court. Precisely
Kálmán Pócza, Márton Csapodi, Gábor Dobos and Attila Gyulai
because a single decision might contain several rulings, in our research, decisions have been broken down into separate units (rulings).
Thus, in contrast to research of the judicial branch which generally considers one decision as the unit of observation, we take one ruling as our unit of observation. The following example justifies this decision. In decision 47/2009 (IV.21.) the Hungarian Constitutional Court first held that “in the application of Section 12 para. (3) of the Act XXIII of 1992 on the Legal Status of Public Servants, it is a constitutional requirement based on Article 59 and 60 of the Constitution that the deed of oath should not contain any data referring to the public servant’s conviction of conscience or religion”. This Ruling 1 is a constitutional requirement. As a second ruling of the same decision, the HCC rejected “the petitions aimed at establishing the unconstitutionality and the annulment of Section 12 and Section 13 para. (2) of Act XXIII of 1992 on the Legal Status of Public Servants”. Consequently, Ruling 2 of this decision was a rejection. As a third ruling of that very same decision, the HCC terminated “the procedure aimed at the posterior review of the unconstitutionality of Sections 31/A–31/F of Act XXIII of 1992 on the Legal Status of Public Servants”, which means that Ruling 3 of this decision was a suspension. As a fourth ruling, it refused in the same decision “the petition aimed at establishing the unconstitutionality and the annulment of Section 13 para. (1), Section 65 para. (2) item d) and Section 102 para. (8) of Act XXIII of 1992 on the Legal Status of Public Servants, and it refused other petitions as well”. This means that Ruling 4 of this specific decision of the HCC was a rejection.
Certainly, constitutional courts do not always make unanimous decisions, and sometimes judges express their disagreement by formulating dissenting opinions. However, while dissenting opinions are linked to certain decisions of the court, the substantive content of dissent relates to one or more rulings of the same decisions. Consequently, not only decisions need to be broken down into rulings, but dissenting opinions can be accounted for only by disaggregating them into the same meaningful and distinct units. That is, in our research, dissenting opinions are also disaggregated into separate units referring to a specific ruling of the court decision. Disaggregating majority decisions and dissenting opinions into rulings implies that the judges’ dissenting opinions can be directly linked to rulings of the majority decisions. This allows for avoiding the pitfalls of a simplified analysis that would link whole judicial decisions to dissenting opinions without taking into consideration that various rulings in dissenting opinions might refer to different parts of a majority decision. This means that dissenting opinions are analysed according to the same components and elements as the majority decisions themselves, and it becomes possible to investigate even individual judicial behaviour.
1.5.1
Components of rulings
Disaggregating decisions into rulings allows for identifying the most specific and meaningful units that describes the behaviour of the majority of the court
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"We are not a rabble," said Hansen sharply. "I shall ask Mr. Barden to leave quietly. We will then continue with our regular business and forget this unhappy incident."
Barden left amid a sullen silence.
That was that. That door was closed to him, finally and completely Barden went home in a blue funk and fretted for several hours. Then determination arose to show them all, and he consulted his notes again.
Time—and Money!
Doubtless it had been the same cry a thousand years ago, and there was no doubt that it would be the same stumbling block a million years from now. Perhaps on a different planet of a distant sun if Terra were no longer a running concern, but it would always be the cry
Well, he thought, considering both, he did not know how much time he had. He knew he had little money. Also, he knew that no matter what he did he would never know about the time factor nor would he be able to change it much. Perhaps there might be some way to get money If he was to be forced into the slow methods, and he failed, he would know that he had tried.
He took his mind from the ever-present problem of putting the science across, and started to inspect the new art from a dispassionate standpoint. It was his first try at looking at the technology from the standpoint of a scientific observer. Since the day of the dream, Tom Barden's one thought had been to initiate this development. Now, for the time being, Tom Barden went through his adequate storehouse of alien knowledge to see what other developments he might get out of it.
He grunted aloud: "If they won't let me build a better spacecraft, I'll build a better mousetrap!"
Then he laughed, for the new art was so complex and so well developed and so far beyond the present science that there were a
horde of little items that could be put to work. The generation of spiral magnetic fluxes, for instance, would far outdo the machinist's magnetic chuck. No plain magnetic attraction this, but a twin-screw of magnetic flux lines throughout the chuck-plate and the metal work, fastening them together There were means of developing a type of superspeed radio communication along a tight beam that could not be tapped. A simple method of multi-circuit thyratron operation that had both an ionization and a deionization time of a fraction of microsecond or even less. A means of amplifying true square waves without distortion—permitting the paradox of the voltage assuming all values between zero and maximum instantaneously during the rise of the wave from zero to peak. A card-file sorting system capable of maintaining better than three million items and producing any given item with a distribution of near-items on either side—all contained in a desk-cabinet and operating silently within a three second interval. A magneto-physical means of exhausting vacuum tubes and removing occluded gases from the tube electrodes simultaneously. The latter could be kept in operation constantly during the life of the tube, if need arose.
He fastened on the latter. If it would generate the almost-perfect vacuum in a vacuum tube it would also de-air electron microscopes and all other kinds of equipment.
It was simple, too. It was not one of the direct results of the alien science, but it was an item used to develop the science from present technology. Doing it would not introduce anyone to Barden's technology any more than a thorough knowledge of small intricate mechanisms would introduce a mechanician to the field of electronics. But one cannot delve into basic electronic theory without hitting some of the principles of moving machinery.
Thomas Barden made his plans. When the plans were made, he bought tools and parts and went to work. Knowing every factor helped, and not many days passed before he had a working model of his magnetic vacuum pump.
He knew where to take it, luckily He had worked for Terran Manufacturing, Incorporated and because of his connection there he was not unknown to the chief engineer of Solar Electric. Terran was a
small outfit, and though Barden felt that he owed it some loyalty, he felt that the mighty Solar Electric could better afford the price he was prepared to ask. Terran would dig it up—but Solar was prepared at any time for that amount.
And the alien race might not wait—
He was ushered into the office of Hal Weston after an hour of painful waiting. The chief engineer of Solar Electric recognized him with a slight frown.
"You're the fellow who took off on Miss Ward, aren't you?"
"No," smiled Barden. "She happens to be the one that took off on me. I'm still right and I intend to prove it!"
"Not here, I hope. Your card stated differently."
"I'm entering nowhere on false pretenses, Mr. Weston. My card states my offer completely."
"You have a means of developing an almost perfect vacuum and simultaneously removing adsorbed gas from any object in the inclosure?"
"Right!"
"Interesting if true. Let's see it."
"I have not the equipment with me. However, I have here a ten-inch glass sphere made from a laboratory flask. In it are several coins, bits of graphite, spongy palladium, and some anhydrous copper sulphate. This tube was evacuated by my equipment and there was no other treatment for removal of extraneous material."
"May we check that?"
"That is why I brought it along—for your own satisfaction."
Weston spoke into the communicator on his desk and in a minute, the door opened to admit an elderly man in a white coat. Weston gave
him the flask and said: "Dr. Grosse, this flask is supposed to be totally evacuated and all adsorbed gases removed as well as water vapor. I want a precision quantitative analysis of everything inside of this flask. And," he grinned, "get the results to me by day before yesterday."
"Now," said Weston to Barden, "granting that this is the real goods, how large can it be made?"
"It takes about four kilowatts per liter," said Barden. "Since the process takes only about ten seconds, the demand is quite high over a short period. But bearing in mind the four KW per liter, you may make the thing evacuate any volume up to the practical limit."
"Nothing for a home appliance," laughed Weston. "But if it will drive the spitting devil out of an electron microscope in ten seconds, it's worth it. What are you asking for rights and royalties if it performs as you state?"
"Mr. Weston, I'm interested in one thing only and that is to prove the value of my theory—the one that Edith Ward scorned."
"We're not interested in your theory save as a theory," said Weston.
"I don't want a position. I want enough immediate money to set up my own laboratory."
"You'll make a lot more if you take a small option now and accept a royalty, you know."
"I'll sell it outright for five million."
"I'm afraid that we can't settle that amount in one afternoon."
"That's all right," said Barden. "Get me twenty-five thousand as an option. Then take ten days to build one or to investigate all you want to. If it does not perform, I'll return your money. If it does perform, five million goes."
"Contingent upon Dr. Grosse's findings," said Weston. "And providing that you give me your original equipment in order to save some time in making the initial investigations. I'll have the option agreement and a certified check in this office tomorrow morning."
Barden smiled. "I know what the evacuator will do. I'll be back tomorrow with the original machine!"
Barden's original was an un-neat bit of coils and conducting rods and it looked out of place in Weston's office. But the chief engineer did not mind. He was gloating over the analysis, and checking the report made by one of the mathematical physicists on the theory of the operation of the evacuator. Both were more than satisfactory.
"You're in, Barden," chuckled Weston as he countersigned the option agreement. "Now what do we do?"
"Me?" said Barden. "I'm going to rent me a large empty plant somewhere and start ordering equipment. I may even be back with a couple of other little gadgets later."
"If they're as good as this looks right now, they'll be welcome."
"I'll remember that," said Barden.
Barden's tracks were swift from there on. His first stop was to deposit the check in the bank to the amazement of his teller who felt forced to check the validity of the voucher despite the fact that it was certified.
To have Thomas Barden, whose average salary had run about a hundred-fifty per week suddenly drop twenty-five thousand in the bank was—to the banker's point of view—slightly irregular
Barden was not able to get out of the bank without having Mr. Coogan, the president of the bank, catch him and ply him with seventeen suggestions as to how the money could be invested. Tom almost had to get insulting before he could leave.
The next month was a harrowing, mad maze of events. He rented an unused factory, complete with machine tools. He hired seven men to help him, and then ran into difficulties because he had to make the equipment to make the machines. He found that starting from complete behind-scratch was a back-breaking job. Daily, the railroad spur dropped a freight car to be unloaded with stuff from one of the leading manufacturers of scientific equipment. The electric company took a sizable bite when they came along the poles with some wristthick cables and terminated it at his plant. He ended up by hiring three more men and putting them to making samples of some of the other by-products, knowing that his money would not last forever. The board of review had mentioned three million, but Barden was beginning to understand that despite all new types of equipment, they were still considering the basic physical laboratory as useful. They
were right. It was a lot different starting from an empty factory and taking off from a well-maintained laboratory.
The days sped by and became weeks. The weeks passed and became months. And as the months worked themselves slowly past, chaos disappeared and order came from madness.
The by-products of the alien science came swiftly, and they sold well. Money flowed in fast enough to attract attention, and it was gratifying to Tom Barden to read an account of his "meteoric rise" that started from the day he "disagreed violently with the famed Dr. Ward."
If he had wanted money or fame, here it was. But Barden knew the story behind the story, and he also knew that whoever the alien might be, from whatever system, and adhering to whatever culture, the alien would find no fault in his operations. He had taken the long, hard road compared to the road taken by an accredited scientist producing such a theory. He cursed the delay and knew that it might have cut his time down to a dangerous minimum.
But Tom Barden had become the genius of the age. His factory had grown to a good staff, all but a few of whom worked on the basic science he needed to develop. It was developing slowly, but certainly, and each experiment showed him that the alien mind had been absolutely correct.
Daily he taught school for a hour. He knew every step, but he wanted his men to know the art when they were finished; the final experiment made. They would emerge from this trial-without-error period as technicians qualified to work on any phase of the new science. It gave him no small pleasure to know that his outfit would eventually be far ahead of the famous Solar Space Laboratory in techniques pertaining to the art of space travel. He hoped to make Dr. Edith Ward sit quietly down and eat her own words—backwards!
His plans were not published, and the outpourings of by-products seemed high enough to any observer to be the sensible output of the many men working there. None but those who worked there knew that Tom Barden knew every detail of every gadget that hit the various markets, and that the work of making the initial models was
not the result of many man-hours of experiment, but a few man-hours of building to plans that had been proven and in use.
He was not bothered until the day it was announced that Thomas Barden Laboratories were buying a spacecraft from the government. The spacecraft was being delivered through the vast back doors of the factory at the same time that Dr. Edith Ward was entering the office doors in front.
Barden met her in his office. "How do you do, Miss Ward."
"How do you do," she returned with extreme politeness.
"May I ask your business?"
"I am here as a representative of the Solar Space Laboratory."
"Indeed? And what has the government to say?"
Edith Ward slammed her purse down on his desk. "You fool!" she snapped. "Stop it!"
"Don't be upset," he said in an overly-soothing tone that was intended to infuriate. It succeeded.
"You blind fool. You're to stop experimenting in that superspeed drive!"
"Am I?"
"Yes," she blazed. "And I have official orders to stop it."
"Miss Ward, you tried to block me before. You did not succeed. Why do you demand that I stop it?"
"Because it will not work!"
"You've experimented?"
"I have not because it is dangerous!"
"Then any knowledge you may have about this science is either guesswork or—feminine intuition?"
"You accused me of that before, remember?"
"I didn't get away with it then," said Barden. "But I can now. I was unknown then, remember? Well, remember again that I've advanced from unknown a year ago to my present stature now. And I might add that my present stature is not too far below your own, Miss Doctor Ward."
"I have authority to stop you."
Barden looked down at her with a cryptic smile. "Yeah?" he drawled. "Go ahead and try!"
"And do you think I can't?"
"Nope," he said.
"How are you going to stop me?" she blazed.
"I won't have to," he said. "Public opinion will. Don't forget, Miss Ward, that people are still running this system. People are and always have been entirely in favor of the man who came up from nowhere and did things on a big plan. Horatio Alger died a long time ago, Miss Ward, but he's still a popular idea. When you stop me I shall appeal to the people."
"In what way?"
"You wouldn't be using your feminine jealousy to stall me while the Solar Lab develops the interstellar drive, would you?"
"You—!"
"Nah," he warned her blithely. "Mustn't swear!"
"Oh damn!"
"Now look, Miss Ward," said Barden quietly, "we've had our snarlingsession twice. Once when you laughed me out of the Terran Physical Society's big meeting and now when I tell you that I am big enough so that you'll not stop me by merely expressing a personal opinion. Since I'm now big enough to command a little respect in my own right, supposing you give me some of yours and I'll see if I can find any in me to show you. Take the previous as a partial apology if you must. But I'm wanting to know by what basis you state that pursuing this job is dangerous—or say more dangerous than working on hightension lines or space travel as it now exists."
"The theory you present has one danger factor. According to my own interpretation of your theory, the fields you require in your spacecraft to achieve superspeed are powerful enough to cause a magnetostriction in nonmagnetic materials. This magnetostriction is an atomic magnetostriction which causes the alignment of the planetary planes of the electron orbits. The result is a minor chain fission reaction that becomes major after the first nineteen microseconds."
"My theory is that nothing of that nature will take place," said Barden.
"Remember," she said, "despite your dislike of me personally, that I am trained in physics. Therefore my interpretation of physical phenomena and my predictions of such are more—"
"I agree," interrupted Barden. "But again do not forget that this is a field that is new to all scientists."
"Agreed again," she said with a slight smile. "But I've had several trained men working on your theory. They agree with me."
"Don't believe that anyone can formulate an opinion on the material that you have available."
"Oh, but we can."
"Then you have experimented—"
"No, we have not."
"Then exactly where did you get this extra information?" demanded Barden.
Dr Edith Ward looked at Tom Barden carefully "From the same place where you got yours!" she said slowly and deliberately.
Barden wondered, did she know?
He grinned. "I dreamed mine," he said. "Everything that I've produced emanated from a dream." Then Barden embellished it thoroughly, knowing that the flagrance of his embroidery would sound like a lie to anyone who was really unaware of the truth. "I was invaded in a dream by a gentleman who used a mechanical educator on me and taught me everything that I've produced, everything that I've invented, and every advanced theory that I've had. I have become a scientist of an alien culture that I have full intention of making into a solar science."
"Then it is true," she breathed.
"What is true?" he demanded.
"Tom Barden, listen. Not only do I accept your apology of a few moments ago, but I offer mine. I—was afraid. Just as you were afraid to let the truth be known. I blustered and took my attitude because I could not let it be known that I, head of the Solar Labs, could be influenced by what the learned men would term either dream or hallucination."
"You've had one too?" he asked quietly. She nodded.
Tom grunted. "Let's compare notes," he said. "Seems as how we got different stories out of our friends."
Edith nodded again and said: "It was a strange dream that came to me one night about a year and a half ago. I was the soul and master of a mighty castle, an impregnable fortress with but five roadways entering. Interpretation of that is simple, of course the five roadways were the five senses. A ... messenger came, but instead of using any of the roadways, he came through the very walls, and warned me."
"Just what was his story?" asked Barden.
"That Sol was a menace to a certain race. This race—never defined nor located save that it was a stellar race—was incapable of conquering Sol excepting by stealth. However it could be done by giving one smart man a partial truth, and that it was more than probable that this would be done. The partial truth was the technique of a new science that would if not used properly, cause complete destruction of the system. In the final usage, there would be a fissionreaction of whatever planet it was used near. The reaction would create a planetary nova and the almost-instantaneous explosion of the planet would wipe out all life in the system and the counter
bombardment of the sun by the exploding planet would cause the sun itself to go nova, thus completing the process."
"I presume your informant was quite concerned over the possible destruction of a friendly race?"
"Certainly," she said. "That is why he contacted me."
"If I were a member of the conquer-all faction of my story, Miss Ward, I would be trying to contact someone here to warn them of a terrible danger if the science were exploited. That would delay our work long enough for them to arrive, wouldn't it?"
"There is nothing so dangerous as a half-truth," said Edith Ward flatly.
"Nor as dangerous as a little knowledge," agreed Barden. "However, Miss Ward, my story is just as valid as yours. And since neither story may be checked for veracity, how do you propose to proceed?"
"I think you'd better stop!"
Barden sat down on the edge of the desk and looked down at her. She was sitting relaxed in the chair alongside, though it was only her body that was relaxed. Her face was tense and her eyes were halfnarrowed as in deep concentration. Barden looked at her for a moment and then smacked a fist into the palm of his hand.
"Look," he said, "that's apparently what your informant wants. Now as to veracity, for every statement you make about the impossibility of interpreting theoretical logic into a complete prediction of physical phenomena without experimental evidence, I can state in your own words that you can't tell anybody what the outcome will be. You want me to stop. If my story is true, then Terra will have interstellar travel and will meet this incoming race on its own terms. Either proposition is O.K."
Edith Ward muttered something and Barden asked what she said.
"I said that I wondered how many men were too successful in mixing nitroglycerine before they had one smart enough to mail the formula
to a friend—before he went up. I also wonder how many men tried Ben Franklin's experiment with the kite and—really got electricity out of the clouds and right through his body and was found slightly electrocuted after the storm had blown over. Number three—novas often occur in places where there seems to be no reason. Could they be caused by races who have just discovered some new source of power? And double-novas? A second race analyzing the burst and trying their own idea out a few years later?"
"My dear young woman," said Barden, "your attitude belies your position. You seem to be telling me not to advance in science. Yet you yourself are head of the Solar Space Laboratory, an institution of considerable renown that is dedicated to the idea of advancement in science. Do you think that your outfit has a corner on brains—that no one should experiment in any line that you do not approve?"
"You are accusing me of egomania," she retorted.
"That's what it sounds like."
"All right," she snapped. "You've given your views. I'll give mine. You've shown reasons why both your informant and mine would tell their stories in support of your own view. Now admit that I can do the same thing!"
"O.K.," laughed Barden uproariously. "I admit it. So what?"
"So what!" she cried furiously. "You'll play with the future of an entire stellar race by rushing in where angels fear to tread!"
"Careful, Miss Ward. Metaphorically, you've just termed me a fool and yourself an angel."
"You are a fool!"
"O.K., lady, but you're no angel!"
"Mr. Barden," she said icily, "tossing insults will get us nowhere. I've tried to give you my viewpoint. You've given me yours. Now—"
"We're at the same impasse we were a half hour ago. My viewpoint is as valid as yours because there's nobody within a number of lightyears that can tell the truth of the matter. You are asking me to suppress a new science. Leonardo Da Vinci was asked to suppress
the submarine for the good of the race. He did it so well that we know about the whole affair."
"Meaning?"
"That true suppression would have covered the incident, too. But the submarine was suppressed only until men developed techniques and sciences that made undersea travel practical. If I suppress this science, how long do you think it will be before it is started again by someone else? How did either of our informants get the information?"
"Why ... ah—"
"By trying it themselves!" said Barden, banging a fist on the desk for emphasis. "Suppression is strictly ostrich tactics, Miss Ward. You can't avoid anything by hoping that if you don't admit it's there it may go away. It never does. The way to live honorably and safely is to meet every obstacle and every danger as it comes and by facing them, learn how to control them. Shakespeare said that—'The slings and arrows of outrageous fortune ... or nobler in the heart to take arms against a sea of troubles ... and by facing them, to conquer them!' That may be bum misquote, Miss Ward, but it is true."
"Then you intend to try it out?"
"I most certainly do!"
Edith Ward stood up. "I've nothing more to say. You force me to take action."
"I'm sorry, Miss Ward. If it is battle you want, you'll get it. You'll find it harder to quell Tom Barden The Successful than you found it a year ago when you shut off Tom Barden The Theorist with a word of scorn. I'm sorry—I really am."
"Sorry?" she repeated with disbelief.
"Sure," he said. "Barden Laboratories and Solar Labs could really go places if we weren't fighting. Only one more thing, Miss Ward."
"What?" she replied impatiently.
"Divide and conquer is not uniquely Terran!"
After she left, Barden wondered whether his final shot had hit anything. He returned to work and forgot about it, sensibly admitting that if it did he would not be bothered and if it did not he wouldn't stop anyway, and so he might as well get to work. He rather hoped to avoid the possible delay that would follow official action.
Dr. Edith Ward answered him within twenty-four hours. Her word was accepted as valid in many places; had been the final authority on such matters for some time. Up to now there had never been any defense. Plus the fact that his side of the argument had never been voiced.
Barden didn't scourge the court for their decision. With only one accredited side of the evidence in, they could but take action. So Barden shrugged, grinned to himself, and spent several days in intense study, laying out the program that was to continue in his absence. Then he took the flier for the Terran Capital.
It was not a court hearing. It was more of a high-powered debate before a group of qualified judges and investigators. Barden looked into the background of his judges and was glad that the old system of appointment to investigating committees had been stopped. Though these men were not qualified physicists, they were not the old-line politician, who took an arbitrary stand because he thought that waving a banner with a certain device would sound good to his constituents. There would be little personal opinion or personal ambition in this hearing, and not one of the judges would sacrifice either contestant on the altar of publicity
By unspoken agreement, neither he nor Edith Ward mentioned the source of their information. This Barden admitted was hard on the female physicist's argument for she could claim only mathematical analysis and he could claim experimental evidence. They heard her side and then asked for his. He gave his arguments simply and answered every point she brought up. There was rebuttal and rejoinder and finally open discussion.
"I claim that this man is not a qualified physicist," she stated firmly. "As such he has not the experience necessary to judge the validity of my argument."
"I admit that I hold no degrees," said Barden. "Neither did Thomas Edison. Is Miss Ward convinced that no man without a string of college degrees is qualified to do anything but dig ditches?"
That hurt, for the investigators were not blessed with doctor's degrees in philosophy; the scattering of LLDs were about half honorary degrees and their owners though gratified for the honor knew how it was earned.
"Of course not," snapped Miss Ward. "I merely state—"
"If Miss Ward is so firm in her belief, why doesn't she bring forth some experimental evidence. She has the entire holdings of the Solar Space Laboratory at her disposal. If this is as important as she claims, then the financial argument may be dispensed with. For no amount of money is capable of paying for total destruction of the solar system."
"I need no experiments," she snapped.
"Or is Miss Ward trying to tell us that any line of research that she does not sponsor is not worth bothering with? Or is she trying to stop me so that she can take up? Or has she started—late—and wants me stopped before I get to the answer. That would make the famous Solar Space Laboratory look slightly second-rate, wouldn't it."
"Gentlemen," cried Miss Ward facing the committee and ignoring Barden, "his statements are invidious. He is accusing me of jealousy, personal ambition, and egomania. This is not fair!"
"Miss Ward, I regret that you are not a man—or that I am not a woman. Then we would have an even chance before a committee of our contemporaries."
"Mr. Barden," she said in an icy voice, "I've been accused of flaunting my sex every time a question is raised. I've also been told by many that my position was gained in the same way. Just because I prefer to be a physicist instead of some man's housekeeper, I am viewed with suspicion, hatred, jealousy, and dislike. Well, Mr Barden, you accuse me of using my sex. It is as much a hindrance as an aid, because I find that a woman has to be three times as good as the man in the same job in order to get the same recognition. If she isn't, nobody trusts her at all! Now," she said facing the committee, "I'll make my final plea. I've had mathematical physicists at work for almost a year. They agree with me. Thomas Barden has earned his position, I admit. But I still claim that he is moving forward along an unknown road because he is unable to make the necessary predictions. I've explained where this road leads to, and the consequences of following it blindly. He must be stopped!"
"Mathematics," said Barden, "and I quote Dr. Murdoch of the Board of Review of the Terran Physical Society: 'And may I add that when mathematics and experiment do not agree, it is the math that is changed. As witness Galileo's experiments with the falling bodies.' No one can make a certain prediction postulated on mathematics unless he has cognizance of every term. Miss Ward, are you aware of every factor?"
"No but—"
"Then your mathematics is faulty. And your opinion is, therefore, reduced to a personal opinion and not a scientific statement of fact. I've heard that a physicist is a learned one who leaps from an unfounded opinion to a foregone conclusion."
"You sound like an orator," snapped Edith Ward, "and orators seldom follow full fact unless it enhances their point."
"I'm sorry that you have that opinion," said Barden. "However, Miss Ward and gentlemen, regardless of what you do, of how you attempt to restrain me, I shall pursue this matter to the bitter end. If you deny me the right to work on Terra or any other solid body of the system, I shall take my laboratory into space and then we shall have two space
laboratories—one of which will function in the medium for which it was named!"
Barden nodded affably, turned, and left the room.
One of the committeemen smiled sardonically and said: "I think he has just said, 'To Hell with us'!"
Another one nodded glumly and said: "Me, I think he's right. No one can stand in the way of progress."
Edith Ward blazed. "Progress! Progress! Is destruction progress? Well, if the ultimate goal of mankind is to go out in a blazing holocaust of his own making, then this is true progress. One proper step toward the final Gotterdammerung!"
The committeeman smiled at her tolerantly. "Twilight of the Gods, Miss Ward? Oh come now, we aren't gods and I daresay that the universe will continue to function without man's aid and abetment."
Edith Ward snorted through her patrician nose. "Correct," she snapped. "But after we leave, who's here to care?"
Dr. Edith Ward was surprised by his arrival at the Solar Space Laboratory. She didn't expect him. He had won his battle, and she knew he was not the kind of man to gloat over a defeated enemy. Therefore she reasoned that she might never see him again for certainly she would not go to his place to see him—and eventually the whole system would go up, triggered by the untrained hand of Thomas Barden.
Then to have him call—it bothered her. Why—?
He entered, carrying a small olive branch, and he smiled boyishly as he handed it to her with a small bow.
"A truce," he suggested.
"There can be no truce," she said stonily. "It will either be you or me that is shown right."
