Oñati Socio-Legal Series

Introduction

2025-04-01T10:23:58+02:00

This issue examines the evolving discourse surrounding judicial independence and the rule of law, mainly, but not only in Central and Eastern European countries facing authoritarian challenges. This introduction emphasizes the importance of examining specific judiciaries, their histories, and ideological perception of judges. It presents outcomes from the Judges under Stress research project and its final conference at the University of Oslo in November 2022. Through a multidisciplinary approach, it investigates institutional path dependence, judicial ideology, and judicial resistance across various countries. The research addresses why courts are a focus for those attacking liberal democracy, how judges perceive their role in the state power system, and whether they have a right or duty to contradict legislation. This issue aims to contribute to understanding the challenges that judiciaries face in maintaining independence and upholding the rule of law in the face of authoritarian pressures.

On judges when the rule of law is under attack

2025-04-01T10:24:09+02:00

A main question of the paper is why the courts, and the judiciary are such a main focus of those in power who attack liberal democracy today. First it adresses the connections between democratic decline and rule of law backsliding. Then it adresses some historical perspectives and compare the present situation to autocracies and totalitarian experiences in Europe in the twentieth century. Finally, it discusses different measures taken by autocratic rulers to limit judicial control, how to distinguish such measures from measures of legitimate legal reform, and how to counter such measures.

Towards understanding constitutional court resilience vis-à-vis autocratization

2025-04-01T10:24:26+02:00

Attitudinal and strategic models prevail in studying the capacities of centralized constitutional courts (CCs) to withstand autocratization. Yet, these models rarely scrutinize CCs’ interpretations of political concepts. This article aims to remedy the gap via an institutionalist approach to the significance of conceptualizations of democracy by CCs. It invokes a maximalist reading of democracy to accommodate a wide range of conceptions, is diachronic, squarable with comparative case studies and sensitive to political regime types, using an ideal-typical distinction between semi-authoritarian, illiberal and democratic regimes. The article illustrates the potential of this approach by presenting a dataset on CCs in Hungary and Slovakia. Both regimes have formally powerful CCs with a non-democratic experience. Yet, they seem to have taken a different trajectory since 2010. The article suggests that analysing these two CCs’ conceptions of democracy can advance our understanding of their role in preventing (or failing to prevent) autocratization in Hungary and Slovakia.

Authoritarian constitutionalism, judicial capture or the ambivalence of modern law?

2025-04-01T10:24:14+02:00

This paper explores the tension between ratio and voluntas in modern law. The work builds primarily on literature analysis to critically engage with two interrelated issues: (i) the notion of “authoritarian constitutionalism” and (ii) the ambivalences observed in judicature’s conceptual articulation and institutional structuration. Then, it presents Chile’s legal order as a study case, examining how the practice and decisions of its Constitutional Tribunal in specific periods exemplify the aforementioned interplay. Afterwards, it incorporates reviews of recent experiences of “democratic backslide” in selected Central and Eastern European countries for a broader comparative dimension. These cases, despite their distinct economic and historical-political contexts, support the paper’s suggestion of a universally observable yet contingently manifested conflicted duality in constitutional orders —oscillating between liberation and repression.

Judges under corruption stress

2025-04-01T10:24:17+02:00

Judicial corruption represents a critical issue for proper functioning of the rule of law and democracy. I explore the topic of judicial corruption and the role judges and lawyers may play in it in Slovakia. We are accustomed to think of judges under stress from political actors or for ideological reasons, although the Slovak case highlights that pressure may also come from rather banal greed-motivated corruption. The paper compares assumptions about judicial corruption, based on in-depth interviews with judges and lawyers (i. e. “how the judges and lawyers believe the judicial corruption works”), and revelations from the leaks of private communications of a prominent Slovak criminal with multiple judges and lawyers (so-called “Threema” scandal, 2019-2021), which caused an upheaval among the politicians and judiciary in Slovakia (i. e. “how the judicial corruption actually works” as based on investigative journalism and published criminal investigations). The leaks led to dozens of criminal investigations of public servants, politicians, businessmen, judges, or lawyers with over 40 of these investigations concluded with a lawful verdict, which provide credence to the leaks. Both from interviews and leaks, judicial corruption in Slovakia appears to have been available to parties willing to access judges through trust brokers, or “fixers”, typically either lawyers, or “entrepreneurs”. The nature of judicial corruption was thus be twofold; (i) low-stake, relying on social capital of judges, lawyers, and “fixers”, established through common socialization and interests; (ii) relying on cash payments facilitated by specific trust brokers – “fixers”, including payments through virtual trusts or secondary trusted service providers. Fixers were not only supposed to influence procedural and meritorious decisions on behalf of their “clients” but also in their own interest in self-initiated legal cases on certain familiar courts and thereby enriching themselves. The paper provides details of suspected corrupt practices, including mechanisms of paying bribes, through comparing interviewees’ perception of judicial corruption and the nature of judicial corruption as based on the leaks covering instances of corrupt practices.

Applying old tools to new challenges

2025-04-01T10:24:39+02:00

As states of emergency are becoming increasingly pervasive, courts can no longer rely on deferential approaches based on the assumption that emergencies are exceptional and temporary. This article investigates two mechanisms of judicial review in the case law of the ECtHR, French Constitutional Council and Council of State. The first mechanism is the review of the existence of the circumstances justifying the exceptional powers and restrictions on human rights. The second is the misuse of power or détournement de pouvoir doctrine. The article argues that both these elements of judicial review are under exploited while presenting the advantage of being readily available – therefore requiring no judicial creation – and offering strong bases to curb abuses of emergency powers. Examined at two different levels, national and regional, these two lines of reasoning, if deployed appropriately, might inspire further jurisdictions faced with similar emergency challenges.

Subject, sovereign, Antigone

2025-04-01T10:24:23+02:00

In this paper I develop a theory of judicial subjectivity based on Lacan’s psychoanalysis. This theory is enriched with a theoretical confrontation with the abyssal laboratory of populist governance which has been created by the far-right majority in Poland since 2015. By adding this empirical context, I enquire how agency of judges is being created by the split legal system. The subjectivity of the judicial function implies speaking modestly in the name of the law, but at the same time involves being addressed by the demands of the Big Other. Yet at the same time the judge holds in her hands the jouissance of the law: it is the judge that can ultimately – with the effect of recognition within the Symbolic – acknowledge or refused validity of the law. It is in the judge’s subjectivity that the law can be recreated or can collapse. The peculiar link between the judge and her master is located in judicial conscience: the place where the subject’s structural emptiness corresponds to the lack within the law. As I argue in the paper, this role comes to the fore in case of split legal systems – such as the Polish one – which address judges with contradictory norms. In such moment the judge becomes ‘a judicial Antigone’ in Lacanian interpretation: a person on whose personal self-identification the legal system itself depends. Such a judicial Antigone – with empirical examples of Polish judges – is both the utmost hero and the utmost victim of the law.

Subordination, conformity and alignment

2025-04-01T10:24:30+02:00

Can a judiciary operating in an autocratic political system be expected to defend the rule of law? What are the implications of the relative autonomy of the judges in such an environment? The main reason why judges are unable to affirm the values of the rule of law is that several conditions of resistance are lacking. Organizational, structural and cultural factors all play a role. The lack of professional solidarity is particularly important. The display of collective power by judges requires particular effort and is not supported by any tradition. The Hungarian political regime has severely eroded the internal culture of the judiciary in its post-2010 reforms of the judiciary. As a result, it is clear that the judicial system, which has received special European attention, cannot be expected to halt the deterioration of the rule of law. An understanding of the culture of subordination and conformity can contribute not only to the analysis of autocratic regimes but also to the reflection on the reconstruction of the rule of law.

Judges under stress: Legal complexes and a sociology of hope

2025-04-01T10:24:33+02:00

How does the sociology of legal complexes contribute to understanding of judges under stress in the shaping of legal-liberal political orders? First, the article proposes six distinctive meanings of judges and judiciaries. Second, it identifies stressors that erode the legitimacy and efficacy of different categories of judges. Third, illustrated by scholarship on Egypt, Pakistan, Taiwan and Hong Kong, it proposes that a theory of domestic and international legal complexes sharpens explanations of robustness of judges’ ability to cope with stress. Fourth, it argues that evidence on legal complexes can move scholarship on judges under stress from static frameworks of social structures to the dynamics of a sociology of hope where structural resourcefulness and repertoires of action multiple the opportunities for resisting stress. Fifth, after identifying contingencies that can relieve stress on judges and judiciaries, the paper concludes points to a redemptive irony of repression by authoritarian rulers.

The role of the judiciary: Interpreting vs creating law – or how Hans Kelsen justified “judicial activism”

2025-04-01T10:24:12+02:00

Hans Kelsen was not only a legal theorist but also worked as a constitutional judge in the First Austrian Republic between 1919 and 1930. Faced with increasing political criticism due to its “activism”, Kelsen radicalized his theory of law-application. He emphasized that judicial work generates law (i.e., it is genuinely political) and that a judge can also create new law outside the framework of possible norm meanings. In this way, he was able to refute political calls for the “depoliticization” of constitutional jurisdiction. In the paper, I present why the Austrian Constitutional Court was accused of “activism” and how Kelsen responded to it. The sociological question of how the judiciary exercises political power and how this power is perceived by politics is addressed in the paper with a focus on legal history, specifically regarding the Austrian Constitutional Court during the interwar period.

A case study of judicial resistance in northern Syria after the March revolution of 2011

2025-04-01T10:24:20+02:00

Judges and prosecutors challenged oppressive laws introduced by the regime of Bashar al-Asad to curb the popular uprising of March 2011 in Syria. When some members of the judiciary became targets of the regime’s security forces, they resigned from office and formed independent councils to administer justice in regions no longer under state control. This article focuses on the first independent council in northern Syria: the Free Syrian Judicial Council (FSJC). Unlike the majority of non-state courts and councils established by groups of armed resistance in Syria, the FSJC does not belong to the category of “insurgent/rebel justice”. Rather, members of the FSJC were engaged in a form of resistance called “judicial resistance”: the capacity of judicial officers to challenge oppressive laws in their decision-making. The article argues that even after they left office, judges and prosecutors of the FSJC were still engaged in judicial resistance: they did their best to uphold the rule of law and provide services to the population despite the breakdown of public order and the fragmentation of the non-state judicial system engendered by the armed conflict.

Judicial resistance and the virtues

2025-04-01T10:24:43+02:00

This article concerns the concept of judicial resistance understood in connection with the individual, on-bench decisions undertaken by judges in view of upholding the rule of law and in defiance of measures introduced by authoritarian, semi-authoritarian, "illiberal", or otherwise oppressive regimes. The point of focus is the normative dimension of acts of judicial resistance and the contention that they constitute the rightful obligation of judges. The article claims that judicial resistance interpreted as a right or duty is objectionable. As it will be argued, the key reason is the inadequacy of the rule-oriented models (deontic and consequentialist) on which the categories of right and duty rest to address the descriptively and evaluatively thick notion of judicial resistance. Instead, the article will argue for a virtue-centred model which explains judicial resistance through the character strengths of a virtuous judge. After expounding the conception of judicial virtue and the approach of a virtuous judge, the analysis will argue how perceiving the capacity to resist in terms of virtue allows for overcoming difficulties connected with the claim that a judge has a right or duty to resist. In the last part, the analysis will propose a list of three virtues that may be especially adequate for judicial resistance based on selected examples.

A judge must not be influenced by fear. Must a judge be brave?

2025-04-01T10:24:46+02:00

It is not acceptable that a judge because of ‘fear’ hands down a wrongful judgment. This was mentioned already by Isidore of Seville in his Sententiae and is part of the oaths of judges in many jurisdictions, from the 1230s onwards until this day. The ‘fear’ that is relevant could relate to one of the parties but also other persons in power. Thus, it relates not only to impartiality but – above all – to independence. Fear is often paired with favour, meaning that a judge should not try to please those in power through his judgments. In this paper I discuss whether the obligation of the judge not to be influenced by fear is only to be understood in the negative sense, or also in the positive – that is, does a judge have to be brave and, for example, oppose actions by persons in power that aim at undermining independence and impartiality? In other words, what are the ethical requirements when a judge perceives a risk that only avoiding being influenced by fear in individual cases will not be enough to protect independence and impartiality for the future?

Judicial Resistance: missing part of judicial independence? The case of Poland and beyond

2025-04-01T10:24:36+02:00

This article critically examines the concept of "judicial resistance" in Poland between 2015-2023, drawing insights from both Polish and international legal frameworks, jurisprudence, empirical research and literature. The study aims to define and differentiate judicial resistance from other judicial attitudes, interrogate its legal character, and explore whether there exists judges’ right or duty towards such resistance. The article posits a definition for judicial resistance, emphasizing actions—both collective and individual, in-court and out-of-court—taken by judges to counter political endeavors that infringe upon judicial independence and violate the law. A pivotal criterion proposed is that the breach of judicial independence must be illegitimate as per national standards and validated as such. To support this, the article references formal assessments from both national and international bodies. The findings indicate a potential necessity for a broader conceptualization of judicial resistance, suggesting it as a possible safeguard against future erosions of the rule of law.

Is kinship always between humans?

2025-04-01T10:24:07+02:00

The study of families has been an articulating axis of the analysis of social reality. This research explores one of the most radical transformations that family groupings have undergone in recent decades: multispecies families. These families are those groupings composed of human and animal members of other species, united by bonds of care, affection and mutual recognition. The article is divided as follows: first, it starts with a general approach to the categories of care, kinship and family; second, it analyzes judgments on post-human families in Argentina, Chile and Colombia; third, it discusses whether or not the regulation of care bonds between humans and companion animals is necessary, the way in which these relationships have been regulated so far, and suggests alternatives for their recognition. Finally, some reflections and final conclusions are presented to think about future multispecies

The modes of production of Law

2025-04-01T10:24:02+02:00

The classical definitions of law have linked legal production with normative production, jurisprudential production, and, in some cases, with doctrinal production. The emergence of socio-juridical definitions have made it possible to make visible the existence of other elements in the processes of composition and production of the Law. In this article, we propose to construct general dimensions on the modes of production of Law that allow to analyze the practices of legal actors with different professional profiles. Considering the results of the doctoral thesis work, we will use the elements that formed the mode of production of the Law of the analyzed university extension programs, grouping them, to develop a process of abstraction of their characteristics, with the aim of constructing an analytical scheme formed by general dimensions on the modes of production of Law. At the end of the article, we will reflect on an idea under construction of what it means to produce Law.

Linguistic policy in Corsica

2025-04-01T10:24:04+02:00

This article analyses the linguistic policy designed and implemented to revitalise the Corsican language. It defends the hypothesis that, after decades of demands from organised civil society and nationalist political parties, and then also from left-wing and right-wing formations of French national obedience, a linguistic policy has gradually been put in place, giving priority to education, mass media and presence of Corsican in the public arena, which is beginning to produce effects, despite an unfavourable legislative framework. This has led the Collectivity of Corsica to develop, in a concerted manner, a more ambitious linguistic policy based on two axes: making Corsican a co-official language and working towards de facto co-officiality. However, the results are mitigated, because this public policy alone cannot guarantee the revitalisation of the Corsican language, as shown by the results of the latest sociolinguistic survey carried out in 2021.