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Transition 2.0 / Court-Unpacking: A Preliminary Inquiry
Transition 2.0 / Court-Unpacking: A Preliminary Inquiry
Contents
Chapter
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1–10
Titelei/Inhaltsverzeichnis
1–10
Details
13–142
I. Setting the Frame
13–142
13–32
Approaching Transition 2.0 in a Realist, Structural, Principled and Inclusive Constitutional Manner
13–32
Details
I. Introduction
II. Constitutional Democracy as a Normative Ideal
III. Conducting Transition 2.0 in a Realist, Structural, Principled and Inclusive Constitutional Manner
1. Realist Approach to Transition 2.0
2. Structural Approach to Transition 2.0
3. Principled Approach to Transition 2.0
4. Inclusive Approach to Transition 2.0
IV. Conclusion
33–58
The Liberation of Illiberal Democracy: On Limits of Democratization after the Authoritarian Backlash
33–58
Details
I. Introduction
II. Transformative Constitutionalism: Preliminary Questions
III. The Liberation of Democracy from Illiberal Politics: Theory and Practice
IV. External Assistance or Internal Threat? On the EU's Ambivalent Rule of Law, its Democratic Deficit and Dividend in 'New Europe'
V. Why Populism Matters: On Theoretical Misconceptions of Constitutionalism and Populism
VI. The Absolute Concept of Constitution and the Authenticity of Constituent Power in Populism
VII. Political Doxa, Legal Episteme and Transformative Constitutionalism's Teleology: Concluding Remarks on Law's Community of Values and Social Justice
59–90
Reversing Authoritarianism in the EU: Transformative Politics and the Role of Opposition
59–90
Details
I. Introduction
II. Reversing the Authoritarian Turn: Transition 2.0 and Transformative Strategies
1. Transition from what?
2. The Agents of transformation
III. Opposition Politics in Authoritarian Contexts – Strategies and Coalitions
1. Experiences from Latin America
2. Anti-authoritarian coordination strategies in and out of government
IV. The European Context: A Two-Level Game
1. The social dimension – Boosting democratic performance from below
2. The political-institutional dimension
V. Conclusions
91–112
Authoritarianism, Judicial Independence and Democratic Transition
91–112
Details
I. Introduction
II. Major Global Threats to Judicial Independence
III. A Growing Threat of Authoritarianism and Regional Responses
IV. Corruption and Judicial Independence
1. General remarks
2. Colombia and Guatemala – case studies
3. UN Convention against Corruption
4. Specific role of transitional justice in the context of corrupted judiciary
V. Justice and Democratic Transitions
1. General remarks on democratic transitions
2. Role of truth commissions
3. Peru’s success story – transition from Fujimori regime to democracy
4. Colombia – transition from FARC
VI. Final Remarks
113–142
EU Values as Constraints and Facilitators in Democratic Transitions
113–142
Details
I. Introduction
II. Premise: Activation and Limits of Article 2 TEU
1. Activation
2. Limits
III. EU Values as Constraints on Democratic Transitions
1. Value compliance in process vs. value compliance in substance
2. Which way out?
IV. EU Values as Facilitators of Democratic Transitions
1. The Polish case: Restoring an independent judiciary
2. The Hungarian case: Breaking constitutional entrenchments
V. Faming the Transition
1. Transformative constitutionalism: Concept and practice
2. European transformative constitutionalism
VI. Fostering a Democratic Culture
1. On politicisation
2. On social support
VII. Conclusion
145–296
II. Constitutional Issues
145–296
145–226
How to Return from a Hybrid Regime into a Constitutional Democracy? Hypothetical Constitutional Scenarios for Hungary and a Few Potential Lessons for Poland*
145–226
Details
I. The Nature of the Hungarian Hybrid Regime
1. The role of law: formality vs. informality
2. The regime’s hyper-pragmatism: adhocism and ideological agnosticism
3. Reasons explaining the formation of the regime
II. A Realistic and Responsible Scenario for the Return to Constitutional Democracy (Preferably without Breaking Legal Continuity)
1. Three stages
a) First stage: things that can also be done with a simple majority
b) Second stage: achieving two-thirds majority in order to change two-thirds majority rules
c) Third stage: adopting a new Constitution (timing, procedural steps and key provisions)
2. When and how might still be forced the new parliamentary majority to abandon the current legal system?
3. Objections
a) “This is formalism”
b) “This is legalism”
c) “This is blindness to the moral content of the legal system”
d) “Legal positivism is untenable: the Nazis also legally introduced the dictatorship”
e) “Why are we so sure that the deep state will not sabotage the newly elected democratic government?”
f) “If we wait until the deep state check mates the new government, it will be too late”
g) “A fascist regime does not deserve to follow its rules”
h) “There is no rule of law here, as the recent case X shows, so we don't have to follow the legal rules in force”
III. Radical Scenarios of Breaking Legal Continuity (i.e. Organising a Revolution in a Legal Sense)
1. Arguments for revolutionary solutions
a) “Written (positive) law allows two-thirds majority rules to be disregarded”
b) “The two-thirds majority rules can be disregarded on the grounds of morality/natural law/legitimacy”
c) “From a practical political point of view, there is no other choice but to disregard certain two-thirds majority provisions”
d) “Several excellent constitutions (which conform to high standards of the rule of law and democracy) have been adopted procedurally illegally in foreign constitutional history”
2. What the supporters of a revolution can not or do not want to answer: questions about concrete procedural steps and the social costs of a revolution
a) The legal form of the parliamentary decision, the signature of the President, and publication in the Hungarian Gazette
b) The Constitutional Court
c) The duplication of the legal system: conflict between law enforcement agencies and chaos
d) Organising a referendum
e) Weighing costs and benefits: potential number of victims, setting a precedent, increasing polarisation
3. Typical logical problems in revolutionary arguments
a) Stepping out of the legal system, stepping into the legal system
b) Orbán’s deep state is both strong and weak
c) We will not tell you the procedural details of how we plan to disregard the two-thirds majority rules, so that Fidesz does not build up new two-thirds majority defences against our plan
d) We advise the public and the politicians on how to organise the transition – but we only talk about philosophical foundations, without the question of practical feasibility
e) Problems related to the timing of the revolution: having it early is not smart, having it late is not useful
f) The deep state officials are all fanatical blind followers of Orbán, but we will quickly convince the Fidesz voters with rational arguments that they should participate in our constitution-making p...
IV. General Questions
1. Can the rule of law only be built in a process conforming with the rule of law?
2. Legal academia and politics: tasks and responsibilities of legal scholars
3. Polarisation as part of the cultural problem
4. Optimism and pessimism in public speaking/writing
5. Is planning a revolution an offence under Hungarian criminal law?
V. Conclusions for a Future Hungarian Transition to Restore Constitutional Democracy
VI. Postscript on the Differences between Poland and Hungary – and a Few Potential Lessons for a Polish Transition
227–248
The Constitutional Trap
227–248
Details
I. Preliminary Remarks
II. The Constitutional Authorities Destroying the Constitutional Order
III. The Status of the President
IV. The Status of the Constitutional Tribunal
V. The Mortal Sins of the Constitutional Tribunal
VI. The President as a Detractor of the Constitutional Order
VII. Scope of Destruction of the Constitution
1. Civil service
2. Freedom of media
3. Deformation of judiciary
4. Scope of deformation of judiciary
VIII. The Real Risk of a Constitutional Clinch
IX. Irremovability of the Judges
X. Three Types of Unconstitutional Judicial Appointments
XI. A Final Caveat
1. General remarks
2. Disciplinary responsibility of the judges of the Constitutional Tribunal?
3. State-organized corruption
4. Excessive radicalism?
XII. The Higher Loyalty
249–276
Asymmetric Rupture: Stabilizing Democratic Transitions 2.0 with Transnational Law
249–276
Details
I. The Transnational Law of Democratic Transitions 1.0
II. The Challenges of Transition 2.0
III. Enforcing Directly Applicable Transnational Law
IV. Erga Omnes Effects of Transnational Law
V. Supererogatory Effects of Transnational Law
VI. Asymmetric Rupture: Breaking the Law to Establish the Rule of Law in Recovering Democracies
277–296
Centralized Judicial Review and the Problem of its ‘Over-Centralization’
277–296
Details
I. The Dreams of New Constitutionalism
II. Illiberal Revolution and the Abuse of Constitutional Courts
III. The Struggle for the Autonomous Role of Ordinary Judges to Promote Constitutionalism
IV. Empowering Ordinary Courts as a Rule of Law Counterrevolution
V. Conclusions
299–494
III. Reestablishing the Judiciary
299–494
299–322
Poland After Elections in 2023: Transition 2.0 in the Judiciary
299–322
Details
I. Introduction
II. Constitutional and Political Constraints of Potential Judicial Reforms
III. Necessary Judicial Reforms
1. Constitutional Court
2. National Council of Judiciary
3. System of disciplinary actions towards judges
4. Status of neo-judges
5. Re-opening of judicial proceedings
6. Administration of judiciary
7. Prosecution Service
8. Other changes
IV. Role of the EU and International Organizations in Securing Judicial Reforms
V. Transitional Justice Schemes
VI. Legitimacy of the Judiciary – Search for Effectiveness
VII. Conclusions
323–360
Court-Unpacking: A Preliminary Inquiry
323–360
Details
I. Introduction
II. What is Court-Packing?
1. Conceptualisation(s) of court-packing
2. Good vs. bad court-packing
3. Specifics of cyclical court-packing
III. Après Court-Packing: What Comes Next?
1. “Packers” stay in power: What can they do?
2. “Packers” lose power: What can the new rulers do?
3. A brief summary
IV. Court-Unpacking: A Preliminary Theoretical Inquiry
1. “Just cause”
2. Techniques
3. Proportionality: How to differentiate unpacking from new court-packing?
4. Other issues to consider when resorting to court-unpacking
5. Alternative reform options
V. Conclusion: The Ultimate Goal of Unpacking
361–382
What Role for Courts in Transforming a Society? A Central European Cautionary Tale
361–382
Details
I. Introduction
II. The Enchantment and the Promise
III. The Central European Experience: A Couple of Revolutions Too Many?
IV. The Euro-Wave: From Euro-Timidity to the Judicial Self-Defence
V. The Revolutionary Tribunals (in Whatever Direction the Next Revolution Goes)
VI. The Way Forward for Courts: Moderate Nudging Within the Bounds of the Constitutional Settlement?
383–424
EU Law and Judicial Decisions of National Judges Appointed in Breach of European Standards
383–424
Details
I. Introduction
II. Preliminary Considerations
1. The Polish problem with the judicial appointments – an outline
2. The axiological context: The identity of the EU legal order
3. National judicial decisions in breach of EU Law
III. Potential Consequences of Judicial Decisions of Defective Appointees
1. Legal ineffectiveness
2. Reopening of judicial proceedings
3. Damages actions
4. Infringement proceedings
IV. Conclusions
425–470
Defective Judicial Appointments and their Rectification under European Standards
425–470
Details
I. Introduction
II. European Standards on the Appointment of Judges
1. National v. European competence to regulate the process of appointing judges
2. Minimum European conditions of the procedure for appointing judges
3. Methodology for assessing the procedure for the appointment of judges: Ástráðsson, Simpson and A.K.
III. Flaws in the Polish Procedure for Appointing Judges
1. General and systemic deficiencies
2. Failure to comply with the requirement of statutory regulation
3. Absence of a guarantee of a merit-based nomination process
4. Compromised fairness of the procedure
5. Lack of effective judicial review
IV. Why Judicial Appointments Need to be Rectified
1. Axiological and systemic objectives
2. Ensuring the capacity of judges to adjudicate
3. Reinforcement of the rule of law and judicial independence
V. Determinants for Rectifying Defective Appointments
1. Ensuring an effective right to a court
2. Interests of the parties to the closed proceedings
3. Legal certainty and res judicata
4. Irremovability of judges
VI. Rectification of Defective Judicial Appointments
1. A precondition: re-composition of the NCJ
2. Recognition of defective appointments
3. Rejection of defective appointments
4. Balancing exercise: search for temperate options and a lesson from Ástráðsson
5. Verification mechanisms
6. Mitigating measures
7. Other instruments: disciplinary and criminal responsibility
VII. Conclusions
471–494
The Role of the Court of Justice of the EU in Transition 2.0
471–494
Details
I. Introduction
II. Context
III. Rediscovering the Treaties Through the Judicial Independence Case-Law
1. Articles 2 and 19 TEU
2. National courts as enforcers of judicial independence – Article 267 TFEU
IV. Putting the Mix Back Together After the Rule of Law Crisis
1. Jurisdiction: overarching supranational judicial oversight
2. Admissibility: selective role of national courts as ‘vigilantes’
3. EU Law and the material redlines of renewed democracies
V. Conclusion
497–584
IV. Deepening the European Dimension
497–584
497–534
Reversing a Member State’s Regression and Restoring (its) Union Membership
497–534
Details
– EU law as mandatory toolbox of ‘Transition 2.0’ –
I. Introduction
II. Transition 2.0: A Process Embedded in EU Law
III. Transition 2.0: A Requirement Based on the Duty of ‘Non-Regression’
1. Non-regression from the fundamental commitment to respect and promote EU values
2. Non-regression from membership commitments
IV. Transition 2.0: A Legal Toolkit to Repair Membership
1. Under Article 7 TEU
2. Outside Article 7 TEU
3. State’s obligations
4. Obligations of EU institutions
a) In the context of Article 7 TEU
b) Outside Article 7 TEU
V. Conclusion
535–562
Transition 2.0 and Rule of Law-Mainstreaming in the European Union
535–562
Details
I. Introduction
II. A Union Transformative Constitutionalism
1. Transitional justice and transformative constitutionalism
2. The union framework for transitional justice in the union
3. Union values as a basis for transitional justice in Member States
4. Tools for transitional justice provided by secondary union law
III. Legitimacy Issues of Transformative Constitutionalism in the Union
1. Right of the union legislator to define the rule of law
2. Constitutional minimum harmonisation in the union
IV. The Value-Function of the Rule of Law
1. A functional view of the rule of law
2. A ‘System of Values’ doctrine for the rule of law
3. Negative and positive obligations emanating from the rule-of-law value
4. The promotion of the rule of law as a constitutional mandate
V. Mainstreaming the Rule of Law as a Union Task
1. Residual union competences for promoting the rule of law
2. Making use of the union’s sectoral competences
3. How to mainstream the rule of law in union law
4. Supporting transitional justice by mainstreaming the union rule of law
VI. Conclusion
563–584
How to Make Article 10 TEU Operational? The Right to Influence the Exercise of State Power and Cardinal Laws in Hungary
563–584
Details
I. Why Democracy?
II. The Matter with Cardinal Laws
III. What, Specifically, Follows from Article 10 TEU?
1. Ensuring democratic legitimacy of the EU or a general requirement of democratic legitimacy at the national level?
2. The right to vote as a key
3. The doctrinal framework
IV. Conclusions
The Venice Commission and Constitutional Dilemmas
Details
I. The Challenge of the ‘Transition 2.0’
II. Lacunae in the Constitutional Regulation
1. Deadlock in presidential elections – the Moldovan example
2. Radical effects of vetting procedures – the Albanian example
III. Abuse of Power by Constitutional Courts
1. The reversal of constitutional amendments – the case of Kyrgyzstan
2. The reversal of constitutional amendments – the case of Ukraine
3. Self-interested decisions of the Constitutional Court – the case of Ukraine
4. Politically motivated constitutional court judgments – the case of Moldova
IV. Lessons Learnt for Transition 2.0
1. Characteristics of transition 2.0
2. Anti-deadlock mechanisms
V. An Outsider’s Role in Deblocking Constitutional Impasses
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Transition 2.0 , page 323 - 360
Court-Unpacking: A Preliminary Inquiry
Autoren
Michal Bobek (Ed.)
Adam Bodnar (Ed.)
Armin von Bogdandy (Ed.)
Pál Sonnevend (Ed.)
DOI
doi.org/10.5771/9783748914938-323
ISBN print: 978-3-7560-0079-1
ISBN online: 978-3-7489-1493-8
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