A Europe Without Internal Frontiers: Challenging the Reintroduction of Border Controls in the Schengen Area in the Light of Union Citizenship

Border controls within the Schengen area are meant to be a thing of the past. Yet, since the refugee crisis of 2015, “temporary” border controls have become quasi permanent in several European Union Member States. Although these controls are against the letter and spirit of the Schengen Borders Code, the Commission has not taken any measures to enforce these rules. One of the reasons for the dismal state of the Schengen area is the one-sided focus on the abolition of internal border controls as primarily functional for the establishment of the internal market. This comes at the expense of Union citizens’ rights and disregards the fundamental role that the abolition of border controls has on how citizens see the Union in political terms and conceive themselves as Union citizens. Against this background, we argue that from its beginning the objective of the project to abolish border controls was to foster a supranational political identity of Union citizens by transforming citizens’ spatial experience. Union citizenship in the current EU Treaty framework constitutes the legal expression of that historical connection between the abolition of border controls and free movement. Emphasizing the citizenship dimension of an area without internal frontiers provides a different perspective on current controls at the Schengen internal borders.

Stepping Into the Same River Twice? Judicial Independence in Old and New Authoritarianism

The study seeks to answer the question of whether there are similarities between the methods used to limit judicial independence in Hungary during the last phase of the communist regime, i.e. before the democratic transition, and today, when many scholars believe that an authoritarian transition is taking place in this country. For this purpose, I argue that despite the undeniable fundamental differences between the political and legal system of these two periods, the mechanisms and ways as the independence of judiciary were and are influenced by the government can plausibly be compared. The analysis seems to support this presumption: both the formal instruments and the informal channels of influence in the hands of the ruling political forces show a number of similarities. Thus, even if there are differences in the degree of their application and result, from centralizing the system of judicial administration to replacing court leaders with politically loyal people there are a number of instruments that enable central government to influence the judiciary, while maintaining the appearance of judicial independence.

The Judiciary in Illiberal States

The Article deals with the actual functioning of the judicial power and the limits of its independence facing an illiberal or authoritarian state. The Article offers a skeptical analysis of the past and especially of the judiciary’s future in Central Europe, with a primary focus on Czechia and Slovakia. After a brief excursion into the times before the installment of communist regimes in the late 1940s, attention shifts to the development of the judiciary during the three decades after the fall of communist rule. In this context, the Article deals with different models of administration of the judiciary and shows how they can function in normal democracy and under the conditions of emerging authoritarianism. It also characterizes different perspectives on the judiciary in common law and continental law and posits different capacities of judges to resist authoritarians in various legal cultures. Finally, it sketches future prospects and attempts to define the typology of judiciary models in authoritarian and totalitarian states.

Panopticon of the Slovak Judiciary – Continuity of Power Centers and Mental Dependence

This Article explores the similarities between the principles which guide the judiciary nowadays and those typical for the functioning of the Communist justice system, particularly the susceptibility to obedience to the requests, orders, or meeting anticipations. The habitus of the judges typical for the authoritarian regime has persisted until these days and was the main reason for the judicial corruption revealed in the “Threema scandal.” This Article’s argument does not connect the judiciary’s dependency to the Communist legacy embodied in members of the judiciary who served before 1989 and are active today. Still, the argument presumes that the Communist heritage is a key to understanding the current situation. The past heritage is hidden in the habitus of the agents or members of the judiciary. This habitus may be unconscious yet defining for the behavior of the agents. The Article aims to identify which continuities of the judicial habitus are apparent in the current judiciary. To demonstrate changes in the position of the judiciary, it presents a thesis of the development of the judiciary from an instrument of the governing party in maintaining a homogenous and subordinated society to the current situation of the Slovak judiciary, defined as a crisis of mental independence resulting in inappropriate behavior and corruption.

Hidden Continuities?: The Avatars of “Judicial Lustration” in Post-Communist Romania

This Article grapples with the instrumentalization of the past in Romania, in the specific context of “judicial lustration” measures. It argues that decommunization and lustration policies, which could not be pursued in the immediate aftermath of the collapse of state socialism in 1989, were weaponized much later and used in order to advance other purposes. In 2006, an expedited judicial vetting procedure, in the context of the EU-driven fight against corruption, was repurposed by the center-right as a lustration instrument. In the same year, the dismantling of an intelligence service created after 1991 in the Justice Ministry (SIPA) to monitor ‘vulnerabilities’ in the justice system has set in motion a long series of failed attempts to bring closure to the question regarding the service’s archives, fomenting continuities of suspicion until today. More recently, in 2018, a form of ‘mock-judicial lustration’ has been used by the political left to deflect or at least delegitimize repressive anti-corruption policies. The new “lustration procedure” implicitly equated the recent cooperation between prosecutors and intelligence officers, in the context of the fight against corruption, with past practices of collusion between the members of the judiciary and the communist Securitate. These three episodes of ‘dealing with the past’ are reviewed in order to showcase path-dependencies. Such path-dependencies are not linked only with carryovers from or throwbacks to the communist past. Rather, pre- and post-communist deficiencies of modernization, combined more recently with gaps in post-accession monitoring by the EU Commission, create continuities of peripheral instrumentalism. Various narratives, such as decommunization, the fight against graft, judicial reform and the rule of law are used to legitimize short-term consequentialism, evincing a resilient, structural resistance to legislative and legal normativity.

Judicial Populism and the Weberian Judge—The Strength of Judicial Resistance Against Governmental Influence in Hungary

The Hungarian judiciary has reacted to the political change of recent years in a twofold way. Some judges have resisted political pressure and decided cases according to the law and their conscience, while others, showing the signs of judicial populism, have deferred to the interests of the government. The paper explains the relationship between this twofold behavior and the bureaucratic tradition of the Hungarian justice system. The conclusion is that the bureaucratic model of organization has certain features that can make judges more resistant to political pressure, while other elements of the model can lead to judicial deference. Nonetheless, these latter elements are not necessary components of the ‘Weberian’ justice system.

Civil Society Organizations for and with the Courts and Judges—Struggle for the Rule of Law and Judicial Independence: The Case of Poland 1976–2020

During the rule of law backsliding crisis in Poland since late 2015, Civil Society Organizations (CSOs) have been active in the struggles to defend judicial independence. CSOs cooperate closely with judges and support their ‘judicial resistance’. This Article has three main objectives: describe and analyze the relationship between judges and CSOs; show the evolution — both continuity and discontinuity in their relations over time; assess whether CSOs’ activities are of any practical significance and therefore worth attention. The CSO-judicial relationship is analyzed for three periods: 1976–1989, the years before the transformation of Poland from a ‘people’s republic’ to a democracy; 1989–2015, the time of building liberal democracy and the rule of law; 2015–2020, the time of defending the rule of law from a populist attack.Drawing on sources including years of participant observation providing unique and insider knowledge, the author analyzes the activities and outputs of CSOs and judges focusing on their interactions and cooperation. The author argues that CSOs play a significant role in the struggle for the rule of law and judicial independence. This Article demonstrates that CSOs’ current engagement and input is not an extraordinary, ad hoc phenomenon, but rather one that arose from the previous interactions between the judiciary and civil society. The author argues that what we witness in Poland is an unprecedented phenomenon, both in the character of the relationship between judges and CSOs, and the scale and diversity of their cooperation. At the same time, the author claims that CSOs are underappreciated, including by academia, their work is taken for granted, and their role in the legal complex can be seen as a partly lost opportunity. If noticed, appreciated, and supported CSOs activities and their role could be more meaningful.

Two Influential Concepts: Socialist Legality and Constitutional Identity and Their Impact on the Independence of the Judiciary

In this Article, I suggest considering linkages of a theoretical, and continuities of a sociological nature between on the one hand, the concept and the practical use of socialist legality in Socialist Hungary—with particular regard to the period following the judicial reform of 1954—and on the other hand, the concept of constitutional identity as it has developed in the Fundamental Law in Hungary, with particular regard to the period since the 2011 judicial reform. The Article highlights surprising similarities in the politically determined legislative intention in these two periods to form embracing, quasi legal concepts, which in themselves seem to differ fundamentally, although the similarities in their nature and in the specific constitutional practice are attention-grabbing. The interpretation of the role of state institutions, and especially the judicial role, lead one to think that despite the explicit rejection of the Socialist era in Article U) of the Fundamental Law in Hungary, the new constitutional regime has familiar attitudes to the understanding of the rule of law and the role of the judiciary in promoting the enforcement of the new, supra legal concepts of a transformative nature, which, however, are filled in with the ruling political ideology, whether it be socialist legality or national constitutional identity.

Law, Politics, and the Military: Towards a Theory of Authoritarian Adjudication

This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.