Given far-reaching changes in the legal systems of East Central Europe since the mid-s, one might expect administrative court judges to have modified the way in which they decide cases, in particular by embracing less formalistic adjudication strategies. Relying on an original dataset of over one thousand business-related cases from the Czech Republic, Hungary and Poland, this article shows that -despite some variation across countries and time -judges have largely failed to respond to the incentives contained in the new constitutional frameworks. They continue to adopt the most-locally-applicable-rule approach and are reluctant to apply general principles of law or to rely on Dworkinian 'policies' in deciding hard cases. The analysis links these weak institutional effects to the role of constitutional courts, case overload and educational legacies.
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.
Scholarly works on judicial populism tend to concentrate on the landmark judgments of constitutional courts and apex courts. Nonetheless, the examination of the activities of ordinary courts is of great importance as they shape the lives of citizens and can strengthen or curb populist politics. In this paper I analyze a phenomenon emerging in the adjudication of Hungarian ordinary courts which can be labelled ‘everyday judicial populism’. Based on case studies and empirical scrutiny I argue that the political populism of the Hungarian government has both a direct and an indirect, but clearly detectable, impact on judicial practice. As regards the latter, the government can manipulate (through its media) public opinion in certain court cases, and judges take this opinion - as the ‘vox populi’ - into consideration in their decision-making. At the end of the paper I examine the institutional conditions that have facilitated the emergence of judicial populism.
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