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Austrian and Swiss Judges - A Comparative Study

NCJ Number
Comparative Politics Volume: 10 Issue: 4 Dated: (July 1978) Pages: 499-517
M W Wenner; L M Wenner; V E Flango
Date Published
19 pages
In studying Austrian and Swiss judges, this research used the Eastonian model, in which it is presumed that the environment in which the individual decisionmaker (a judge) is socialized and his training will affect his ideological orientation as well as role perceptions.
Austria and Switzerland were chosen because they share in the civil law tradition, and thus would not be inclined to use precedent as an important decisiomaking factor. Furthermore, because of differing historical experiences, Austrian judges would tend to be more conservative in most political, economic, and social matters than their Swiss counterparts. A questionnaire was distributed to some 238 judges in the middle-level appellate courts during the winter 1972-73, with 97 judges responding. Results showed that the Swiss are from small towns, more widely educated, more Protestant, and have been in office for shorter periods; the Austrians, in contrast are more urban, more Catholic, and somewhat younger. Both are from roughly the same social class. However, no conclusive statements could be made about these differences. One unexpected result was that Austrian judges are more conservative on social issues involving women than are the Swiss. Aside from a general corroboration of the hypothesis that Austrian judges tend to be more conservative than their Swiss counterparts, there is very little confirmation that background characteristics provide much explanatory power in accounting for judges' decisions. On the other hand although precedent is ranked as less important by Austrian and Swiss judges, the difference between these and American judges is less marked than was anticipated given the civil (Roman) and common law traditions. The single most important factor for both sets of judges is the written law, an expected finding, with the second most important factor being common sense. More significant, however, is the finding that both judges rank the decisions of superior courts, relevant precedents, and decisions in analogue cases so highly. Generally, the Swiss are more precedent-oriented than the Austrians, and the Austrians tend to be somewhat more public-regarding and socially conscious. Both length of time and term in office are inversely correlated with precedent orientation. Tables and 23 notes are provided.


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