Spurred by legal tradition or contextual politics? Lessons about judicial dissent from Slovenia and Croatia

Abstract

Comparative studies tend to attribute observed differences in judicial dissent to different legal tradition. Divergent dissent behavior of constitutional courts in Slovenia and Croatia, which emerged from a shared legal tradition, casts doubt on the validity of this view. We first clarify the countries’ common legal-historical legacy and identify salient post-Yugoslav between-country differences in party fractionalization, a contextual factor previously shown to influence judicial outcomes. We next argue conceptually that, for a given legal tradition, greater party fragmentation increases the net benefits to justices from dissent. Finally, drawing on a newly-assembled micro-level dataset of constitutional court decisions in Slovenia and Croatia, we demonstrate that country-level party fractionalization is indeed an important determinant of judicial dissent. Our analysis thereby illuminates that underexplored contextual political factors may be no less relevant as a driver of dissent in the courts of law than the conventionally emphasized legal tradition.