The Judiciary in Central and Eastern Europe

Transcription

1 The Judiciary in Central and Eastern Europe Mechanical Jurisprudence in Transformation? By Zdenek Kiihn M ART INU S NIJHOFF PUBLISHERS LEIDEN'BOSTON 2OII

2 TABLE OF CONTENTS ACKNOWLEDGMENTS INTRODUCTION I. Searching for the Continuity in Legal Thinking of Post- Communist Europe II. Roadmap of the Book xin XV XV xviii CHAPTER ONE. THE ORIGINS OF CENTRAL EUROPEAN LEGAL CULTURE I. The Austrian Legal Tradition II. III. IV. The Central European Legal Systems in the Aftermath ofworldwarl Hungarian Law Polish Law Czechoslovak Law The Status of Judges and its Problems Legal Professions in Central Europe Prior to Communism V. The Experience of World War II CHAPTERTWO. SOCIALIST LEGAL CULTURE IN CENTRAL EUROPE: AN INTRODUCTION I. The Success of Stalinization 21 II. The Political Trials of the 1950s 26 III. From the 1960s through the 1980s 28 IV. The Transformation of the Legal System 31 IV.i. Towards Law Comprehensible to All 31 IV.2. The Inclusion of Laymen 34 IV.3. Restricting the Competence of the Courts and the Proliferation of Decrees 36 IV.4. Leaving the Continental Tradition 40 IV.5. The Prosecutor: The Main Guardian of Socialist Legality 43

3 VU1 The Judiciary in Central and Eastern Europe V. Law and Everyday Life 45 VI. Law Students during Socialism 49 VII. The Legal and Social Status of Lawyers and Judges in Particular 52 Vm. Assessingjudicial Independence 57 IX. Conclusions: Central European Legal Culture on the Eve of 1989 *> 2 CHAPTERTHREE. FROM STALINIST ANTI- FORMALISM TO SOCIALIST TEXTUAL POSITIVISM: CENTRAL EUROPEAN JUDICIAL METHODOLOGY DURINGTHE COLD WAR I. Ideologies of Judicial Decision-Making 67 Li. The Ideologies of Bound and Free Judicial Decision-Making in Comparison Formalism andanti-formalism in Judicial Reasoning The Decline offormalism and Bound Judicial Decision-Making in Western Law Western European Judicial Practice 86 II. The Socialist Judge in the 1950s: A Builder of Communism The Soviet Idea of Law Antecedents: Anti-Positivism Towards Stalinist Law: A New Concept of Law and Its Inner Contradiction II.L3. Th e Origins of Stalinist Judicial Activism The Aftermath of the Communist Takeover and the Beginnings ofthe Transformation of Judicial Rhetoric Stalinist Decentralized Constitutional Review: A Short-Lived Novelty Marxist Ideology in Adjudication Identification of Law with Morality? The Instrumental Concept of the Law Heavy Emphasis on Criminal Sanctions III. The End of Stalinism and the New Socialist Textual Positivism Post-Stalinist Desiderata- Stability and Formality n The Contradiction between ClaimedAnti-Formalism and Practiced Ultra-Formalism 120 III.s. Analyzing Czechoslovak Case Law of the 1970s and 1980s 124

4 Table of Contents ix IV V III.4. Constructing the Concept of Limited Law 129 IH.4.1. Legal Education Socialist Scholarship Static Interpretation of the Law Western Law as Seen by Communist Lawyers The Communist Countries Did Not Need Long-Lasting Codes but Ever-Changing Laws Socialist Judicial Practice in Socialist Jurisprudence and Socialist Jurisprudence in Socialist Judicial Opinions Socialist Legal Injustice: Formalism versus Anti-Formalism Revisited 145 An Attempt to Explain the Rationale of Socialist Ultra-Formalism 151 CHAPTERFOUR. INSTITUTIONAL CHANGES AFTERTHE COLLAPSE OF COMMUNISM I. The Replacement of Judges 164 II. Introducing the Actors Professional Career Judges Bornfrom Infant Judges Who Are Central European Constitutional Justices? 174 III. The Rise of Litigation 176 IV The Independence of Judges after the Fall of Communism 178 V Towards More Efficient Procedure 182 CHAPTERFIVE. JUDICIAL METHODOLOGY IN A POST-COMMUNIST WORLD: OVERCOMING THE CONCEPT OF LIMITED LAW? I. The Judicial Discourse on Formalism. The Institutional Background Unpublished Case Law Constitutional and Ordinary Courts 192 II. Discourse between the Czech Constitutional Court and Ordinary Courts. The Ideology of the Bound Judicial Decision-Making Challenged 199 II.i. The Concept of'mechanicaljurisprudence': A Slow Transformation 199

5 x The Judiciary in Central and Eastern Europe II.2. Limited Law and Limited Sources of Law 207 II.2.1. Listening to Legal Academia II.2.2.The Issue of Precedent II.2.3. The Czech Constitutional Court on the Binding Force of Precedents of Ordinary Courts III. Textual Positivism: Public Critique and the Position of Legal Science IV. The Issue of the Binding Force of Decisions of Constitutional Courts IV.i. Case Study: The War of Courts'in Poland and the Czech Republic IV.2. The Problem of Interpretation Consistent with the Constitution V. Making New Constitutionalism Inclusive vis-a-vis the Ordinary Courts: The Problem of the 'Over-Centralization' of Centralized Judicial Review 2 44 V.i. Former Czechoslovakia: The Empires of Centralized Judicial Review 248 V.2. Poland: Activism of the Ordinary Judges and the Battle over Centralized Judicial Review 252 V.3. On DisobedientJudges: The Polish and Czech Situation Compared 258 V4. Centralized'versus Decentralized Constitutional Review Revisited 260 VI Learning Abroad: Comparative Constitutionalism and Central European Constitutional Courts 263 VII. New European Judges 267 VII.i. The Application ofeu Law prior to EUEnlargement 267 VII.1.1. Examples of Application VII.1.2. Examples of Non-Application VII.2. Central European Judges as New "European"Judges 274 VII.2.1. The Application of European Law: General Maxims VII.2.2. Constitutional Courts VII.2.3. Ordinary Courts I: Textual Positivism and European Law VII.2.4. Textual Positivism and European Law: Case Scenario VII.2.5. Ordinary Courts II: Two Different Conceptions of Law VII.3. Reconsidering the Principle Iura novit curia- Authoritarian versus Authoritative Approach to I^ *

6 Table of Contents xi CONCLUSIONS. RETHINKING THE FUTURE OF THE CENTRAL EUROPEAN JUDICIARY 293 SUBJECT-MATTERINDEX 297 INDEX OF PERSONAL NAME S 309 ABOUTTHE AUTHOR 313