Judges Under Stress: Understanding Continuity and Discontinuity of Judicial Institutions of the CEE Countries

Abstract

A. IntroductionThe project Judges under Stress aims to elaborate on a more in-depth understanding of the historical process that is often covered by the "grand narratives." These are commonly built on the notions of old institutionalism focusing on formal institutions, providing clear-cut, stable, rigid, unquestionable versions of the past. Our quest is to dismantle these narratives.The grand narratives lack the understanding that the countries' transition may not depend solely on a change of formal rules. They focus on important events, ruptures, during which the formal framework changes. However, the change may be rooted in a shift of informal norms, personnel, tradition, and culture. Narratives are easy to follow; they are likely to be heard and easily retold. They are often described in a limited scope because of the hesitance of taking a challenge to consider all the social development, everyday life, ideology, resistance, obedience, legislature, common sense, academic works, and other factors. Therefore, the narratives are often told periodically, as one block of events, chronologically coming after another, distinguished only by a beginning and an end. However, our project would like to doubt rigid concepts of beginnings and ends. What often might be considered a start of some era may be a continuation of the previous process and previous decisions from limited possibilities of past choices.An institution is a crucial concept. It is a structure, a web of events, decisions, knowledge, rules, traditions, habits, morals that form social life. Douglass North defines institutions as "humanly devised constraints that structure political, economic and social interaction." 1 Institutions define roles, relations, and powers. People fill these positions and thereby form organizations. Moreover, in institutions, we may find more intricate structures that explain reality in a more detailed, verifiable, and reliable way. Deconstruction of the institution may show us, for example, that what might be a significant rupture in the political sphere of social reality, might still be represented by continuity in the field of personnel of state administration or habitus of the members of the group that contradicts the aims of the formal rules. While the grand narratives focus on discontinuities of formal rules, the informal continuities stay often overseen.We decided to deconstruct these narratives and verify them with knowledge of the past and extensive archival work. Our project aims to research the specific events, policies, and This special issue emerged from the project Judges under Stress -The Breaking Point of Judicial Institutions Project. The project is financed by the FRIPRO program of the Norwegian Research Council and the University of Oslo (2019Oslo ( -2022.

Judicial resistance and the virtues

“…The attempt by the law itself to auto-regulate the breaking point of the rule of law by defining judicial resistance in terms of a right or duty of a judge would be futile or at least self-defeating. First, attacks undermining the rule of law are highly context-dependent, and the particular measures undertaken for this purpose by illiberal rulers cannot be considered in isolation (Graver 2022). Second, decreeing the right to resist a specified action or practice would amount to another formalized institutional safety fuse, which could be circumvented by a bad-faith regime or -could block otherwise legitimate reforms.…”

“…Judges may also be found to resist manifestly immoral laws in otherwise democratic, even liberal, legal-political systems; for instance, this was the case of some U.S. judges before the American Civil War who used creative strategies in their jurisprudence to subvert slave laws operating through the Fugitive Slave Clause (Cover 1984, Baker 2012, Zajadło 2019). In the current context, judicial resistance has been discussed in reference to modern Central European democracies that found themselves affected by the "rule of law backsliding" (Graver 2022). In theoretical legal debates, the notion of judicial resistance usually pertains to taking up action (or non-action) in defence of the rule of law and judicial independence by individual judges within their juridical capacities (Graver 2018, Zajadło 2022.…”

Judges under stress: Legal complexes and a sociology of hope

“…What role does it play in the constitution of legal and political orders, most particularly, in the rise or fall of liberal-legal orders? These questions come sharply into focus when we narrow our concern to judges under stress (Graver and Čuroš 2021).…”