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ENQUIRE PROJECT DETAILS BY GENERAL PUBLIC |
| Project Details |
| Funding Scheme : | General Research Fund | ||||||||||||||||||||||||||||
| Project Number : | 17622019 | ||||||||||||||||||||||||||||
| Project Title(English) : | Court Curbing: Elites and Judicial Power in the Age of Populism | ||||||||||||||||||||||||||||
| Project Title(Chinese) : | 司法遏制：民綷浪潮下的政治精英及司法權力 | ||||||||||||||||||||||||||||
| Principal Investigator(English) : | Dr Schwartz, Alexander David | ||||||||||||||||||||||||||||
| Principal Investigator(Chinese) : | |||||||||||||||||||||||||||||
| Department : | Department of Law | ||||||||||||||||||||||||||||
| Institution : | The University of Hong Kong | ||||||||||||||||||||||||||||
| E-mail Address : | schwartz@hku.hk | ||||||||||||||||||||||||||||
| Tel : | |||||||||||||||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||||||||||||||
| Subject Area : | Social and Behavioural Sciences | ||||||||||||||||||||||||||||
| Exercise Year : | 2019 / 20 | ||||||||||||||||||||||||||||
| Fund Approved : | 685,320 | ||||||||||||||||||||||||||||
| Project Status : | Completed | ||||||||||||||||||||||||||||
| Completion Date : | 31-8-2022 | ||||||||||||||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
This research is about legislative and executive efforts to limit or control the power of courts, a phenomenon known as “court curbing”. The topic is both perennial and timely. Even in longstanding and stable constitutional democracies, courts may have their jurisdiction curtailed or their resources cut. In more extreme cases, the judges themselves may be impeached and replaced by more docile alternatives. Recent events in Poland and elsewhere have made questions of judicial independence and court curbing more pressing than ever. Although this latest wave of court curbing may appear to reflect a broadly “populist” hostility to judiciaries, I will show how court curbing is driven primarily by the interests of political elites and their frustration with independent courts. To this end, I use cross-national data to investigate how court curbing might be predicted in advance, testing hypotheses that court curbing will be prefigured by episodes of non-compliance with judicial decisions and proactive efforts by political elites to turn public opinion against the courts. I will also look closely at how anti-court discourse is employed to justify and legitimate court curbing in recent examples from Poland, Turkey, and the United Kingdom. Ultimately, these two lines of inquiry will come together to show how court curbing is motivated and shaped by elite interests. 此研究與「司法遏制」有關，意指立法及行政機關嘗試限制或控制法院的權力。此題目具迫切性及深遠影響。即使在歷史悠久及穩定的民主體制，法院仍會面對其管轄權被限制或資源被削減的風險。在更極端的情況下，法官更有機會被彈劾並被其他相對溫順的人選取締。近期於匈牙利、波蘭及土耳其的發展令司法獨立及司法遏制的問題變得更迫切。雖然近年的司法遏制浪潮似是民綷主義對司法機構呈現的敵意，我認為司法遏制是源於政治精英的利益及他們對於司法獨立的不滿。為此，我將利用跨國數據研究如何預測司法遏制及測試於司法遏制發生之前通常會先出現不遵守法院判決及政治精英積極將民意放於法院的對立面上的假設。另外，在波蘭、土耳其及英國的例子中的，我會研究「反法院」的論述如何被建立並合理化司法遏制。以上兩個研究問題將顯示司法遏制是如何被政治精英的利益推動及成形。 |
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| Realisation of objectives: | I left my position at the University of Hong Kong prior to the completion of this project. Nevertheless, several objectives have since been achieved. With respect to Objective #1, the research identified and described categories of court curbing discourse across three diverse contexts (Poland, The United Kingdom, and Turkey) showing how populist framing is employed strategically to facilitate court-curbing policies. With respect to Objective #4, the research led to the completion of a monograph proposal for Cambridge University Press. Cambridge University Press has awarded me the contract to produce the monograph, tentatively titled Populist Court Curbing, to be published in their prestigious series on comparative constitutional law and policy. Five of the nine planned chapters for the monograph are now complete and the monograph is expected to be published in 2024. With respect to Objective #5, the global pandemic interfered with conference plans but eventually research findings were presented at the annual meeting of the International Society of Public Law in 2022 in Wroclaw, Poland (July 4-6) and at the Launch Event for the Empirical Network on Law and Judicial Politics at University College London in 2023 (4-5 May). With respect to Objectives 2, 3, and 4, the original plans were interrupted by my move from HKU to the University of Glasgow, but I will take these forward in the coming year. | ||||||||||||||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||||||||||||||
| Major findings and research outcome: | The project's major findings derive from both quantitative cross-national analysis and qualitative comparative case-study analysis. Using fixed effects regression models - and controlling for several variables thought to have an influence on the incidence of court curbing - the cross-national quantitative analysis confirms the expectation that governments that use populist rhetoric are relatively more likely to engage in court curbing. The analysis also suggests that modelling populism as dynamic rhetorical behaviour (as opposed to a static characteristic of political leaders) does a better job of accounting for the relationship between populism and court curbing. Qualitative case studies of Poland, Turkey, and the UK show how populist rhetoric facilities court-curbing plans and how the power of Populist court-curbing frames is conditioned by local cultural resonance. In contrast to Poland and Turkey, the research finds that anti-court populism fails to resonate in the UK and this feature of the broader political culture helps to insulate the British judiciary from court curbing. These findings are presented in the forthcoming monograph (see Part C). | ||||||||||||||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
A promising path for further research, building on this project, is to investigate more broadly the ideational factors that motivate or constrain threats to independent judicial power. Scholars of judicial politics often acknowledge that court curbing might be influenced one way or another by values and informal norms, but they have tended to favor rational-strategic (as opposed to ideational) explanations. This emphasis is understandable; rational-strategic explanations often generalize well across contexts, whereas ideational explanations tend to be more idiographic. But ideational factors are likely to interact with rational-strategic factors in important ways that should not be neglected. For example, one of the blind spots in the existing scholarship on how political competition influences judicial independence is the assumption that rival politicians and political parties in a given context are similarly positioned with respect to the costs and benefits of independent judicial power. But the putative insurance value of judicial independence is likely to vary with the ideology of competitors. The logic of judicial independence as political insurance would, for example, apply very differently to a party with illiberal preferences than to a competitor party intent on positioning itself as the liberal or establishment choice. | ||||||||||||||||||||||||||||
| Layman's Summary of Completion Report: | This research investigates how governments use populist rhetoric to legitimate policies that curb the power and/or independence of courts. The research advances several related claims. First, the success of court curbing depends on how it is framed; policies that limit the power or independence of courts cannot be sustained unless they are presented as appropriate remedies for real and pressing problems. Second, the choice of how to frame court-curbing policies has a strategic dimension; it is a choice structured by the expected reactions of other actors. Framing strategies can therefore be analysed in terms of how they anticipate and manage opposition to court curbing. Third, populist rhetoric provides an especially powerful frame for the purposes of court curbing—not only does it help to justify court curbing, by vilifying judges as morally blameworthy enemies of the righteous people, but it also provides a ready-made counterattack to criticism by casting opponents as self-serving elites (this is a framing strategy that politicians who have already had some success using populist frames are especially well-placed to exploit). Finally, populist court-curbing frames are not uniformly effective; they are effective to the extent that they resonate with pre-existing beliefs, values, and narratives in particular contexts. | ||||||||||||||||||||||||||||
| Research Output | |||||||||||||||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
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| SCREEN ID: SCRRM00542 |