A short guide to the methodology
Units of observation
In contrast to previous researches on the judicial decisions which consider generally one decision as the unit of observation, the JUDICON-EU project takes one ruling as the unit of observation. Judicial decisions might contain several different rulings. For example, a decision of the court might 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.
Diversity of rulings
All rulings should be disaggregated into four elements. Obviously, the most important element of the ruling is the provision, which declares a rejection or refusal, a legislative omission or a constitutional requirement, a formal or substantive unconstitutionality. However, it is also important whether the constitutional court annuls only a part of the law or the whole act (or only a certain interpretation of it). This will be referred to as the completeness of a ruling. Furthermore, the temporal effect of the annulment can vary, which also influences the diversity and strength of the ruling. These three components (provision, completeness and temporal effect) are always located in the operative part of a judicial decision.
Finally, rulings may contain a prescription, which declares how unconstitutionality might or should be corrected – it formulates guidelines or directives which legislations should transform into a law. A prescription might be found either in the operative part or in the justification of the decision. The four elements might be considered as a toolbox from which a judge or the constitutional court can select the preferred ruling type. The combination of these elements might end up in very divergent rulings, thus the diversity of judicial rulings might be explored by applying this novel approach in the research.
Strength of judicial rulings
Measuring the strength of judicial rulings requires weighting its elements. There are two clear principles which served as anchors in elaborating the scale of the strength of judicial rulings. The first principle is that any form of substantive unconstitutionality should be regarded as a stronger ruling than any other ruling based on procedural unconstitutionality or constitutional requirement. Therefore, the weakest combination of substantive unconstitutionality should always be regarded as stronger than the strongest form of procedural unconstitutionality. The second principle is that constitutional interpretation in abstracto should be regarded as the strongest constraint on the legislator. Thus, constitutional interpretation in abstracto must be at least as strong as the strongest ruling declaring substantive unconstitutionality. Based on these two principles, the different elements of the judicial rulings should be weighted as follows:
For a more elaborated version of the methodology see:
Kálmán Pócza (ed.) (2019): Constitutional Politics and the Judiciary: Decision-making in Central and Eastern Europe (London/New York: Routledge)