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

Abstract

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.

Constitutional Referrals by Ordinary Courts: A Platform for Judicial Dialogue and Another Toolkit for Judicial Resistance?

“…169 In a similar vein, judges who have deferred to the interests of a populist government can abuse constitutional referrals as an instrument for so-called judicial populism. 170…”

Judicial resistance and the virtues

“…A mere executor of the letter of the law, la bouche de la loi, does not usually carry a hefty burden of responsibility; if judges were only pronouncing the law, the lawmaker would be the only one to blame for the faults of the unfair law. Indeed, this may be a view held by many judges in the continental tradition, where they have been historically seen as neutral bureaucrats (Bencze 2021, Zobec 2022. The judges must stand invariable with the law, whatever its contents, with unwavering faith in legal justice guaranteed by a dose of formalism.…”