Judges' behaviour and relationship with political parties in a non-common-law country : the case of the German Federal Constitutional Court

Abstract

In contrast to common-law countries, in civil-law countries it is difficult to investigate individual judges as political actors. It is mainly due to the legal norm under the civil-law tradition which is averse to disclosing individual judges' behavior. An exception is the German Federal Constitutional Court, permitting their judges to publish dissenting opinions. This paper identifies individual judges' political orientation on an underlying dimension by applying an unfolding-type of item-response model to those dissenting opinions. We find different degrees of congruence between political parties' and judges' political orientation, which we explain by the principal-agent theory. More specifically, we argue that some characteristics of potential judges are crucial for the screening by political parties in the selection process of the judges. Our empirical analysis shows that judges' party membership and former political career promise more screening success by parties, while lifetime appointment decreases congruence of nominating parties and judges.