Conference Agenda

1. Problem Statement and Purpose

Constitutional courts are key institutions for upholding the rule of law in modern constitutional democracies. As ultimate decision-makers regarding the constitutional character of public policies and decisions, constitutional judges wield great power on both the general and particular workings of the public sector.

While there are numerous controversies regarding the democratic credentials of constitutional control (Waldron 1993, 2006), one growing criticism targets the politicization of constitutional courts (Sethi 2025, Volcansek 2019). While a constitutional court is a political institution, not a purely judicial one, its role in a state committed to the rule of law makes partisan politicization a problem that can be fatal for the efficiency of the public sector. Moreover, the appointment of partisan judges distorts the impartial nature of the court and puts the highest political-legal institution in a Weberian no man’s land of legitimacy.

The aim of this paper is to formulate a set of guidelines for the institutional design of Kelsenian centralized constitutional courts that mitigates the negative consequences of politicization while maintaining the link between the people who have sanctioned the constitutional text, their representatives and the judges.

2. Methodology

The problem of politicization and the more general problem of institutional design in the case of constitutional courts are studied through the theoretical lens of principal-agent theory. This theory has been developed within the framework of the new institutional economics (Williamson, 1975; 1985; Moe, 1984; Miller, 1992) but has found applications spanning various fields (Eisenhardt, 1989; Braun, Gaston, 2003), including law (Songer et al. 1994; Kim 2011). We approach this by analyzing three case-studies of constitutional courts (Romania, Poland and Hungary) modelled as agents acting on behalf of the people and the constituent assemblies. Using this theory, we analyze the a priori independence and power of each court, the evolution of partisan politicization and the impact of politicization on key decisions affecting the public sector.

3. Findings

The first finding of our research is, when put in a general formulation, an old one: institutions matter. Specifically, the initial power and independence of the constitutional court, as provided by the first post-Communist constitutions of each country, are essential for understanding the differences between the politicization of the three constitutional courts studied.

Secondly, understanding a constitutional court as a focal point in multiple unbalanced principal-agent relationships created by the constitution of each country manages to offer a set of guidelines for incremental changes in the institutional design of each particular court that can diminish its vulnerability to partisan politicization.

4. Proposal

The main proposal to address the problem of constitutional court politicizations consists in amending specific constitutional provisions regarding the independence and power of constitutional judges. This should be realized in a way that changes the incentives faced by the judges and the appointing bodies in a way that aligns more closely the actions of the judges-as-agents to the their role as prescribed by the constitution.

5. References:

Sethi, Amal, (2025). Politicising Constitutional Court Appointments In Europe (First View), European Constitutional Law Review, available at SSRN: https://ssrn.com/abstract=5125583 or http://dx.doi.org/10.2139/ssrn.5125583.

Waldron, J. (2006). The Core of the Case against Judicial Review. The Yale Law Journal, 115, 1346-1406.

https://doi.org/10.2307/20455656.

Volcansek, M. L. (2019). Judicialization of Politics or Politicization of the Courts in New Democracies? In C. Landfried (Ed.), Judicial Power: How Constitutional Courts Affect Political Transformations (pp. 66-81). Cambridge University Press. https://doi.org/10.1017/9781108348669.004.

Keywords:

Constitutional courts, principal-agent theory, politicization.

Problem Statement and Purpose

Contemporary eco-social challenges—such as environmental degradation, social inequalities, and political unrest—are often classified as complex or “wicked” problems. These issues resist resolution through technical expertise alone and instead require collective, cross-sectoral knowledge and collaboration.

Facilitation, and consequently the role of facilitators, is central to enabling these processes of negotiation, mutual learning, and problem-solving. The New Public Governance paradigm, which emerged in the late 1990s and early 2000s, reconceptualizes public administrations as facilitators of actor networks that bring together diverse forms of knowledge. In recent decades, public servants have increasingly adopted mechanisms known as democratic innovations to structure these knowledge exchanges and negotiations—collaborative governance being one of the most prominent examples.

Within this context, public administrators must develop facilitation capabilities to effectively lead collaborative governance processes and engage economic and social stakeholders in participatory responses to complex problems. This paper explores two central questions: (1) How can universities—and, more specifically, researchers—support public servants in building these capabilities? and (2) How can these capacity-building processes help public servants manage the personal and institutional tensions they may experience when adopting a facilitative role?

Methodology

This study presents an action research initiative conducted by two researchers from Orkestra – Basque Institute of Competitiveness, in collaboration with public servants from the Economic Development Agency of the Bilbao City Council (Spain). The research process involved cycles of joint reflection and action, spanning from February 2023 to July 2024, with the aim of co-generating actionable knowledge on facilitation for collaborative governance.

The participating team consisted of two senior policymakers and nine members of the agency's technical staff. Together, they engaged in efforts to design and implement a collaborative governance strategy focused on Knowledge-Intensive Business Services (KIBS) in the city of Bilbao.

The findings presented in the paper are based on the systematization of the process, using data drawn from meeting minutes, internal reports, and evaluation materials. These sources provided in-depth, qualitative evidence—such as literal excerpts—that support the analytical narrative and insights.

Findings

The action research process simultaneously contributed to enhancing the technical staff’s facilitation capabilities and made visible their internal concerns regarding their changing roles. Specifically, the process revealed tensions between their emerging responsibilities as facilitators and the traditional administrative logics that structure their daily work.

Importantly, it was the sustained engagement of both the researchers and technical staff in iterative cycles of reflection and action that enabled these concerns to surface. Moreover, the process offered a supportive space in which participants could explore and address these tensions, leading to concrete actions aimed at aligning their practices with their new roles.

Proposal

In today’s complex governance environment, public institutions are increasingly opening their organizational structures to external economic and social actors through democratic innovations. This shift requires intentional strategies to develop public servants’ facilitation capabilities.

This study argues that action research is a valuable framework to support such development. It fosters the co-creation of practical knowledge that policymakers can integrate into their everyday facilitation of democratic innovations, including collaborative governance.

Furthermore, beyond capability development, action research processes provide public administrators with a safe and reflective space to examine and address the discomfort and uncertainty that may accompany their evolving roles. This internal dimension is crucial, as it directly affects the capacity of public institutions to build and sustain collaborative networks capable of addressing complex societal problems in participatory and effective ways.