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

See all articles by Frank Emmert

Frank Emmert

Indiana University Robert H. McKinney School of Law

Date Written: October 1, 2001

Abstract

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

Emmert, Frank, The Independence of Judges - A Concept Often Misunderstood in Central and Eastern Europe (October 1, 2001). European Journal of Law Reform, Vol. 3, No. 4, 2001, pp. 405-409, Available at SSRN: https://ssrn.com/abstract=2341441

Frank Emmert (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

Inlow Hall IN 335
530 West New York Street
Indianapolis, IN 46202
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
62
Abstract Views
491
rank
446,536
PlumX Metrics