In search of judicial impact : a consideration of concepts and methodologies

The courts in South Africa have the potential to play an important role in securing the democratic and equal society that is envisaged in the Constitution. Armed with the Bill of Rights, their adjudication of disputes provides an opportunity for them to influence both policy and administrative decision-making. This is because although the courts usually exercise their powers in relation to individual disputes, the resulting judgments often have broader implications for administrative decision-making. Given that government in effect takes place through a myriad of individual decisions and administrative actions, if such judgments are implemented widely they can incrementally assist in steering the on-going transformation of the public administration and contribute to the evolving rights-based jurisprudence. Yet despite the importance of this role, very little is known about whether the courts have had an effect on policy and bureaucratic decision-making in practice. In consequence we generally do not know whether the courts are fulfilling the role that is envisaged for them in the Constitution because we are unable to answer a number of fundamental questions about their impact. For example, are the courts successful in holding officials accountable? Do officials take judgments seriously? If so, do they implement those judgments? If not, why not? Providing answers to these questions is not a simple task. The small but growing body of judicial impact studies which assess such issues have not yet resulted in a generally accepted theory on how judicial impact studies should be undertaken, nor is there a unified approach regarding what impacts are assessed, how impact is established or which underlying theoretical approach is optimal. The aim of this article is to explore some of the key conceptual and methodological issues that are involved in researching judicial impact. As a point of departure, the second part of this article discusses the concept of impact by considering two questions, that is: what is impact, and can it be measured? The third part of the article considers different methodological approaches. It highlights the strengths and weaknesses of the positivist and interpretivist theoretical approaches which have underpinned most impact studies to date and discusses how the use of a combined approach can offer new insights for our understanding of the reception of judicial direction by bureaucrats. That analysis is followed in the fourth part of the article by a discussion on a key limitation in the scope of existing judicial impact studies and suggests how and why future research can make a contribution to enhancing the influence of the courts. Finally, concluding remarks are made in the last section of the article.