The Independence of Judges - A Concept Often Misunderstood in Central and Eastern Europe
European Journal of Law Reform, Vol. 3, No. 4, 2001, pp. 405-409
5 Pages Posted: 17 Oct 2013
Date Written: October 1, 2001
The paper discusses what Zdenek Kühn later described as "the Empire of Mechanical Jurisprudence" in the Croatian Yearbook of European Law & Policy, namely the systemic pressure on judges during the Socialist era to stick strictly to the black letter of the law. By exercising this pressure, combined with the system of telephone justice, where judges got phone calls from the Communist party headquarters telling them how to decide politically or otherwise sensitive cases, beautifully illustrated by Maureen Fitzmahan in the Parker School Journal of East European Law, Socialism systematically purged the judiciary from any independent thinkers and any notions that "justice" rather than "law" should be applied. The legacy of this era is painfully obvious today in many courts in Central and Eastern Europe, where judges simply do not know how to handle their newly secured independence. They widely lack the methodological training to properly motivate their judgments, which in turn seem arbitrary. The painful conclusion is that the judiciary in the CEECs used to lack any legitimacy because it was seen as the enforcement arm of an illegitimate Communist party dictatorship and now it struggles to gain any legitimacy because it is seen as unpredictable, unaccountable, and corrupt.
I have further developed this line of argument in my article "Stare Decisis - a Universally Misunderstood Idea", published in Legisprudence, Vol. 6, No. 2, 2012 (now called "The Theory and Practice of Legislation" by Hart, UK), and also available on my SSRN author page.
Keywords: Rule of Law, Central and Eastern Europe, Court Reform, Stare Decisis, Corruption, Legitimacy of Courts
JEL Classification: H10, K10, K40, K41, K42, O19, P20
Suggested Citation: Suggested Citation