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Licensed Unlicensed Requires Authentication Published by De Gruyter December 9, 2020

Judicial Individualism and Judicial Disagreement in Constitutional Reasoning

  • Tamas Gyorfi ORCID logo EMAIL logo and Eva Boda-Balogh ORCID logo
From the journal ICL Journal

Abstract

Although it is common knowledge that judges in different legal systems have different conventions as to how they justify their decisions and some judges are more while others are less willing to articulate their positions, we did not have exact data about these differences in constitutional reasoning. Our research proposed a simple index (JI) to measure the level of judicial individualism. Drawing on the research design of the Conreason project, we used this index to compare the practice of 14 constitutional courts in landmark constitutional cases. In addition, we also measured the level of disagreement (JD) within these 14 courts and by introducing the concept of disagreement factor (DF) we analysed to what extent substantive disagreements contribute to the rise of the number of separate opinions and, hence, to the rise of judicial individualism.


Corresponding author: Tamas Gyorfi, Professor of Law, School of Law, University of Aberdeen, Aberdeen, United Kingdom, E-mail:

Our research was funded by the National Research, Development and Innovation Office, Hungary (Grant 124224). We are indebted to the following people for helping us in the coding of the decisions: Katarina Trimmings, Zdenek Kühn, Lizeth Moreno, MariaCaterina La Barbera, Marian Ahumada, Yingzi Yan, Yuli Huang, Chuying Zhan, Gideon Sapir, Ulisses Terto Neto and a group of his students. We are grateful to András Jakab, Katalin Kelemen and Gábor Halmai for their invaluable comments on earlier drafts of this paper.


Funding source: National Research, Development and Innovation Office, Hungary

Award Identifier / Grant number: 124224

Published Online: 2020-12-09
Published in Print: 2020-11-25

© 2020 Walter de Gruyter GmbH, Berlin/Boston

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