Explaining judges’ opposition when judicial independence is undermined: insights from Poland, Romania, and Hungary

ABSTRACTOver the past decade, governing parties in Central and Eastern Europe have dismantled liberal democracy, violating the rule of law and limiting the power of judges. This article examines the opposition to these transformations, focusing on the role of judges in Poland, Hungary, and Romania. Drawing on an original survey, as well as a set of interviews with judges, the article shows that while in Poland judges have developed a unified opposition to the government in defending their independence, in Romania, in contrast, governmental measures have polarized judges into a divided opposition, while their mobilization has been rather non-existent in Hungary. Why do judges oppose governmental action limiting judicial independence in some contexts but not in others? The article shows that the nature and the sequencing of domestic transformations, coupled with ideational factors and interests-based calculations, explain judges’ opposition at the collective and individual levels.KEYWORDS: Rule of lawjudicial independencejudges professional associationHungaryPolandRomania Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Ioannidis and von Bogdandy, “Systemic Deficiency in the Rule of Law”; Pech and Scheppele, “Illiberalism Within: Rule of Law Backsliding”; Bodnar, “Polish Road Toward an Illiberal State”; Kelemen, “The European Union’s Authoritarian Equilibrium”; Closa, “The politics of Guarding the Treaties.”2 Scheppele, “Autocratic Legalism.”3 Bugarič and Ginsburg, “The Assault on Postcommunist Courts.”4 Bugarič and Kuhelj, “Varieties of Populism in Europe”; Sadurski, Poland’s Constitutional Breakdown.5 Zielonka, “Counter-Revolution. Liberal Europe in Retreat.”6 Gerring and Cojocaru, “Case-Selection: A Diversity of Methods and Criteria,” 397–8.7 Burbank and Friedman, Judicial Independence at the Crossroads.8 Helmke, Courts Under Constraints; Pereira, Political (In) Justice; Moustafa, The Struggle for Constitutional Power; Hilbink, Judges Beyond Politics in Democracy and Dictatorship; Ginsburg and Moustafa, Rule by Law: The Politics of Courts.9 Bojarski, “Civil Society Organizations for and with the Courts and Judges”; Matthes, “Judges as Activists: How Polish Judges Mobilise.”10 Gersdorf and Pilich “Judges and Representatives of the People.”11 O’Donnel and Schmitter, Transitions from Authoritarian Rule, 1.12 Goodin, Institutions and Their Design.13 March and Olsen, “The New Institutionalism.”14 Ibid.15 Dahl, Political Oppositions in Western Democracies.16 Brack and Weinblum, “Political Opposition: Towards a Renewed Research Agenda,” 74.17 Segal, “What’s Law Got to Do With It.”18 Dezaley and Garth, “Dealing with Virtue. International Commercial Arbitration.”19 Ginsburg and Moustafa, “Rule by Law: The Politics of Courts,” 14–17.20 Hilbink, Judges Beyond Politics in Democracy and Dictatorship, 27.21 Pizzorno, “La Corruzione Nel Sistema Politico,” 63.22 Segal, “Judicial Behaviour,” 277.23 Hilbink, Judges Beyond Politics in Democracy and Dictatorship; Hilbink, “Agents of Anti-Politics: Courts in Pinochet’s Chile.”24 For a recent application of the model see Bencze, “Judicial Populism and the Weberian Judge.”25 Hilbink, “Agents of Anti-Politics,” 120.26 Hay, “Good in a Crisis,” 107.27 Burbank and Friedman, Judicial Independence at the Crossroads, 27; Pizzorno, “La Corruzione Nel Sistema Politico.”28 Segal, “Judicial Behaviour,” 280.29 Burbank and Friedman, Judicial Independence at the Crossroads, 28.30 Hilbink, Judges Beyond Politics in Democracy and Dictatorship, 29.31 Stone-Sweet, The Judicial Construction of Europe.32 Piana and Dallara, Networking the Rule of Law; Jaremba and Mayoral, “The Europeanization of National Judiciaries.”33 Jaremba and Mayoral, “The Europeanization of National Judiciaries.”34 Piana and Dallara, Networking the Rule of Law.35 Coman, “Quo Vadis Judicial Reforms?.”36 Coman, The Politics of the Rule of Law.37 Weinman and Vormann, “From a Politics of No Alternative.”38 Halmai, “A Coup Against Constitutional Democracy”; Moraru, and Bercea, “The First Episode in the Romanian Rule”; Sadurski, Poland’s Constitutional Breakdown.39 From March to July 2022, we conducted 12 representative semi-structured interviews with Hungarian, Polish and Romanian judges (4 interviews in Poland, 4 in Hungary, and 4 in Romania). The dates of the interviews and the association membership of the interviewees are reported in Appendix A1 (see online supplemental materiel). The semi-structured questionnaire is presented in Appendix A2 (see online supplemental materiel).40 Jaspers, Lubbers and De Graaf, “Measuring Once Twice.”41 According to Gersdorf and Pilich, judges who belong to professional associations account to 40% of their total number.42 In Poland, we contacted Iustitia on 22 March 2022. The survey was distributed on 2 April 2022 and stayed opened from 4 April to 19 May. We received 175 completed questionnaires. In Romania both AFJR and UNJR agreed to distribute the survey, respectively, on 23 February and 15 April 2022. The survey stayed opened from 4 May to 19 June, and we received 67 completed questionnaires from AFJR and 11 from UNJR. Due to the limited number of respondents, we excluded UNJR responses from our analysis. Finally, in Hungary, MABIE accepted to distribute the survey on 2 May 2022 and to send it to judges in September 2022. The survey was opened by some members of MABIE but not answered.43 Similar difficulties have been encountered by other organisations, like the ENCJ.44 Dobbin et al., “Surveying Difficult Populations.”45 Jolly et al., “Chapell Hill Expert Survey Trend File.”46 Coppedge et al., “V-Dem [Country–Year/Country–Date] Dataset v13.”47 Coman and Puleo, “Judges’ Associations in Hungary, Poland and Romania.”48 UNJR, “Apel UNJR si AMR.”49 AFJR, “Asociaţia Forumul Judecătorilor din România.”50 Quoted in Raisz, “A Constitution’s Environment, Environment in the Constitution,” 56–7.51 MABIE, “Visszaemlékező dr. Makai Lajos, az Egyesület Elnöke 2008–2018 között.”52 Fleck, “Judicial Independence in Hungary,” 817.53 Coman and Puleo, “Judges’ Associations in Hungary, Poland and Romania.”54 MABIE, “Tájékoztató az EAJ jelentés kapcsán.”55 Halmai, “A Coup Against Constitutional Democracy.”56 Bánkuti, Halmai and Scheppele, “Hungary’s Illiberal Turn.”57 Kovács and Scheppele, “The Fragility of an Independent Judiciary.”58 Bodnar, “Polish Road Toward an Illiberal State.”59 Kovács and Scheppele, “The Fragility of an Independent Judiciary,” 4.60 Halmai, “A Coup Against Constitutional Democracy.”61 For more details on OBH president’s power, see Amnesty International, “Status of the Hungarian Judiciary.”62 Grabowska-Moroz and Szuleka, It starts with the personnel. Replacement of common court presidents and vice presidents from August 2017 to February 2018.63 Sadurski, Poland’s Constitutional Breakdown.64 Moliterno and Čuroš, “Recent Attacks on Judicial Independence,” 1176.65 Kovács and Scheppele, “The Fragility of an Independent Judiciary,” 9.66 Gajda-Roszczynialska and Markiewicz, “Disciplinary Proceedings as an Instrument.”67 Sadurski, Poland’s Constitutional Breakdown.68 Duncan and Macy, “The Collapse of Judicial Independence.”69 Marcisz, “A Chamber of Certain Liability”; Sadurski, “The Disciplinary Chamber May Go.”70 Moraru and Bercea, “The First Episode in the Romanian Rule.”71 Ibid.,89.72 Selejan-Gut̗an, “Romania: Perils of a ‘Perfect Euro-Model’.”73 The question addressed by the V-Dem team to the country experts is the following: “When the high court in the judicial system is ruling in cases that are salient to the government, how often would you say that it makes decisions that merely reflect government wishes regardless of its sincere view of the legal record?.” For more details see Coppedge et al., “V-Dem Codebook v13.”74 Hilbink, Judges Beyond Politics in Democracy and Dictatorship.75 Fleck, “Judicial Independence in Hungary,” 801.76 Ibid., 804–5.77 Fleck, “Changes of the Judicial Structure in Hungary,” 851; Bencze, “Judicial Populism and the Weberian Judge,” 1287.78 Călin, “Changes Brought to the ‘Justice Laws’.”79 Sledzinska-Simon, “The Rise and Fall of Judicial Self-Government.”80 Sadurski, “Poland’s Constitutional Breakdown.”81 More specifically, we addressed the following questions to our sample: on ideological orientation (In political matters people refer to “the left” and “the right”. What is your position? Please indicate your views using any number on an 11-point-scale. On this scale, where 0 means “left” and 10 means “right,” which number best describes your position?); on liberal values and on the EU, we first introduce the question asking respondents to locate their position on different issues (Now we would like you to have your views on the following issues. For each issue, we would like to ask you to position yourself on a scale from 0 to 10, where “0” means that you “fully agree with the statement at the top” and “10” means that you “fully agree with the statement at the bottom”. Then if your views are somewhere in between, you can choose any number that describes your position best). Then we introduced distinct poles for cultural issues (0. fully in favour of a policy that does NOT allow abortion under any circumstances/10. fully in favour of a policy that allows abortion under specific circumstances) and EU issue (0. unification has already gone too far/10. unification should be pushed further).82 Coppedge et al., “V-Dem [Country–Year/Country–Date] Dataset v13”; Kelemen, “The European Union’s Authoritarian Equilibrium.”83 Călin, “Changes Brought to the ‘Justice Laws’.”84 Fleck, “Changes of the Judicial Structure in Hungary”; Bencze, “Judicial Populism and the Weberian Judge.”85 Bencze, “Judicial Populism and the Weberian Judge.”86 Pizzorno, “La Corruzione Nel Sistema Politico,” 63.87 See also Gersdorf and Pilich, “Judges and Representatives of the People.”Additional informationFundingThis research had been conducted as part of the project “Judicial (in)dependence: political, social and legal support and resistance(s) in Hungary, Poland and Romania (JUSTICE)” supported by the Fonds de la Recherche Scientifique (FNRS), Belgium.Notes on contributorsLeonardo PuleoLeonardo Puleo is a postdoctoral fellow at the Institut d'études européennes of the Université libre de Bruxelles. His research deals with party competition and challenger parties, with a focus on the spreading of illiberal ideas and rule of law issues.Ramona ComanRamona Coman is a Professor of Political Science at the Université libre de Bruxelles. She is the author of The Politics of the Rule of Law in the EU Polity. Actors, Tools and Challenges (2022, Palgrave Studies in European Union Politics). Her research focuses on dynamics of policy/institutional change, democratization and Europeanization, with particular attention to EU's rule of law policy tools and judicial reforms in Central and Eastern Europe.