The changing judicial patterns in Central Europe

Abstract

Abstract. By the fall of Communism, also the past of Central and Eastern Europe is mostly hold eradicated, albeit it cannot but steadily survive in sublated mentality. On the fi eld of l aw, this is expressed by the continuity of textcentrism in approach to law, with the law's application following the law's letters in a quasi-mechanical way. Consequently, what used to be legal nihilism in the Socialist regime has turned into the law's textual fetishism in the meantime. This is equal to saying that facing the dilemma of weighing between apparently contradictory ideals within the same Rule of Law, justice has in fact been sacrifi ced to the certainty in/of the law in the practical working of the judiciary. Especially, constitutional adjudication mostly works for the extension of individual rights while the state as the individuals' community is usually blocked in responding challenges in an operative manner. Situation in Poland, the Czech and Slovak Republics, Baltic Republics, as well as Croatia is surveyed through a series of case studies in order to show degrees and variations of worsening. Softening the law by activating juridical inventiveness was used to be pressed on the region during her preparation to accession, a practice that has now been counteracted by stiffening hard law anew. In either case, on the last resort, phase-lag of juridical mentality in the region may have been at stake, preserved at the stage what Western Europe could develop into when reconstruction after the end of WWII started. For post-war West's new joiners in approach and methodology -like (1) natural law considerations; (2) balancing among interests through assessing them in light of general principles and clauses, either of the law or implied by its underlying legal culture; as well as (3) constitutionalisation of issues -have remained mostly esoteric ideas, alien in mass to the region in question. The damage this condition may cause by cumulation is an added burden on the popular receptivity of catch-words heralded, among other ideals, by the Rule of Law.

From resentment to deconstruction: Whistleblowing as a politico-legal tool of labour law enforcement

“…The weak enforcement of labour law in Central Eastern European countries is related to wider problems of legal hyper-positivism and text-centrism, ‘with the law’s application following the law’s letters in a quasi-mechanical way’ (Varga, 2014: 87). The legal positivism emphasises the autonomous position of the legal system within society, which does not necessarily have any connection to other societal norms, such as ethical or political ones.…”

Burning the Rechtsstaat: legal institutions and protection of the rule of law

“…By contrast, the Estonian approach may have mitigated somewhat the prevalence of legal hyperpositivism as in Poland. Although we lack comparable hard data from Estonia, it seems justified to say that hyperpositivism, despite being present to some degree, has not gained a firm foothold (Varga [2014] points to the case of the Estonian Supreme Court's approach to preliminary questions addressed to the European Court). In particular, through the reappointment procedure enacted at the outset of the transformation noted above, as well as the vast consultations conducted with top legal scholars and institutions in Europe and the USA (e.g.…”