Abstract
AbstractThe Article deals with the actual functioning of the judicial power and the limits of its independence facing an illiberal or authoritarian state. The Article offers a skeptical analysis of the past and especially of the judiciary’s future in Central Europe, with a primary focus on Czechia and Slovakia. After a brief excursion into the times before the installment of communist regimes in the late 1940s, attention shifts to the development of the judiciary during the three decades after the fall of communist rule. In this context, the Article deals with different models of administration of the judiciary and shows how they can function in normal democracy and under the conditions of emerging authoritarianism. It also characterizes different perspectives on the judiciary in common law and continental law and posits different capacities of judges to resist authoritarians in various legal cultures. Finally, it sketches future prospects and attempts to define the typology of judiciary models in authoritarian and totalitarian states.
Highlights
The Article deals with the actual functioning of the judicial power and the limits of its independence facing an illiberal or authoritarian state
The Article offers a skeptical analysis of the past and especially of the judiciary’s future in Central Europe, with a primary focus on Czechia and Slovakia
The Article deals with different models of administration of the judiciary and shows how they can function in normal democracy and under the conditions of emerging authoritarianism
Summary
The current Czech model of administration of the judiciary is functionally and conceptually linked to the original Austrian model created at the end of the 19th century, following the adoption of the Austrian December Constitution in 1867. The Czech judiciary has historically been compromised by the fact that the “ministerial” model of judicial administration functions well only under favorable political conditions—the period from the 1870s to the summer of 1914, the first three decades after 1989. When it eventually clashes with politics, the judiciary loses much of its strength and is not capable of playing its role as the one who protects legality and law. The recent Polish experience of merging the positions of the Minister of Justice and the General Prosecution in one, and the executive assault on the judiciary provide a good warning in this respect.[34]
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