Beyond the Myth of Legality? Framing Effects and Public Reactions to High Court Decisions in Europe

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/00104140231152769
• Author: Pedro C. Magalhães,Jon K. Skiple,Miguel M. Pereira,Sveinung Arnesen,Henrik L. Bentsen
• Date: 01 September 2023
• Subject Matter: Articles

Article

Comparative Political Studies

2023, Vol. 56(10) 1537–1566

© The Author(s) 2023

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DOI: 10.1177/00104140231152769

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Beyond the Myth of

Legality? Framing Effects

and Public Reactions to

High Court Decisions in

Europe

Pedro C. Magalhães

1

, Jon K. Skiple

2

,

Miguel M. Pereira

3

, Sveinung Arnesen

2

, and

Henrik L. Bentsen

2



Abstract

How do people respond to different decision-making processes in high

courts? One long-standing view suggests that citizens expect courts to be

neutral arbiters of legal controversies. Although the relevance of such “myth

of legality”has been challenged, we know very little about the relationship

between the portrayals of the motives of courts and justices and public at-

titudes in civil law countries. We explore this question in a pair of experi-

ments in Norway and Portugal where we isolate the effects of different

institutional frames from outcome favorability. We f‌ind that while partisan

frames are detrimental to fairness perceptions and acceptance of decisions,

depictions of judicial decision-making that emphasize policy goals do not

adversely affect citizens’responses in comparison with legalistic frames. The

results suggest that, even in civil law systems, preserving the myth of legality

may not be a necessary condition to elicit public support for judicial decisions.

1

Institute of Social Sciences of the University of Lisbon, Lisbon, Portugal

2

NORCE Norwegian Research Centre, Bergen, Norway

3

London School of Economics and Political Science, London, UK

Corresponding Author:

Pedro C. Magalhães, Institute of Social Sciences, University of Lisbon, Av. Prof. Anibal

Bettencourt, 9, Lisbon 1600-189, Portugal.

Email: pedro.magalhaes@ics.ul.pt

Keywords

law and courts, law and society, political psychology, experimental research

High courts—those placed at the apex of a country’s legal system—are in-

creasingly “directing the making of public policies”(Tate, 1995, p. 28) and

becoming de facto “third chambers”in policymaking (Brouard & H ¨

onnige,

2017;Sweet, 2000). However, this purported political strength hides an in-

herent vulnerability. Lacking “inf‌luence over either the sword or the purse”

(Hamilton, 1788), high courts need to secure compliance with their rulings,

including support from the general public (Gibson et al., 1998). Without

ample public support for high courts, the elected branches of government will

be less constrained in defying their rulings and undermining their institutional

integrity (Arato, 2016, p. 221). In an age when courts have become the target

of populist challenges to liberal democracy (Kov´

acs & Scheppele, 2018;

Mudde, 2013), investigating the conditions behind popular support for courts

and their decisions has acquired a renewed relevance.

A vast literature in social and political psychology suggests that people’s

compliance with authorities in general—and courts in particular—does not

depend exclusively on obtaining outcomes that accord with their preferences.

Instead, it also depends on the extent to which citizens perceive the decision-

making procedures employed by those authorities as fair (Tyler, 1990,2006).

However, very few people have f‌irst-hand experience with judicial decision-

making. Most citizens learn about how courts and judges decide from the

media and elite discourses, which, in turn, inform interpersonal communi-

cation. This suggests the possibility of framing effects: that “a speaker’s

emphasis on a subset of potentially relevant considerations causes individuals

to focus on these considerations when constructing their opinions”

(Druckman, 2001, p. 1042). In particular, public perceptions of judicial

decision-making can be affected by institutional frames: alternative inter-

pretations of the motives of courts and justices that result from highlighting

some considerations over others (Nicholson & Howard, 2003, p. 677).

In this study, we ask how different institutional frames affect people’s

perceptions of the fairness of judicial decisions and their acquiescence to

them. One long-standing answer to this question is that citizens exposed to

legal frames are more likely to support court rulings and perceive them as fair.

To the extent that citizens adhere to a “myth of legality”about courts, they are

more likely to see judicial decisions in a positive light when they are framed as

resulting from “the application of legal rules formulated and applied through a

politically and philosophically neutral process of legal reasoning”(Scheb &

Lyons, 2000, p. 929). However, it has also been argued that this emphasis on

legalism is overblown. Citizens may be more like “legal realists,”willing to

1538 Comparative Political Studies 56(10)