The varying effect of court-curbing: evidence from Hungary and Poland

Abstract

With the rise of populism, we frequently witness how elected governments try to limit judicial power by using different means. Comparing the court-curbing policies used by the Fidesz government in Hungary and the PiS government in Poland, this study has two objectives. First, it aims to explain whether different court-curbing policies effect judicial independence differently. Using synthetic control method, I find that the predominant use of informal court-curbing policies erodes judicial independence much more extensively compared to the predominant use of formal court-curbing policies. The second objective is to provide and empirically test the causal explanation for this effect. I argue that when the incumbent tries to weaken the judiciary mostly through informal court-curbing, this might instigate public discontent and jeopardize the judiciary's legitimacy in the short run. However, when the government tries to restructure the judiciary via constitutional reforms, the legitimacy of the ‘new’ judicial system might not be questioned by the public. Supporting these hypotheses, the empirical results show that while the court-curbing attempts of the PiS government reduced public confidence in the judiciary by almost 15 percent, we do not see a significant decline in the Hungarian case where mostly formal court-curbing was used.