Cristina E. Parau
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780197266403
- eISBN:
- 9780191879593
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197266403.003.0001
- Subject:
- Law, Legal Profession and Ethics
This chapter defines the monograph's scope of inquiry – to elucidate the origins of Judiciary branch institutions in the newly democratizing countries of Central and Eastern Europe – and sets out its ...
More
This chapter defines the monograph's scope of inquiry – to elucidate the origins of Judiciary branch institutions in the newly democratizing countries of Central and Eastern Europe – and sets out its research puzzles: how came the institutional design of the Judiciary to be patterned on always the same transnational template which happens to maximize judicial empowerment to the exclusion of alternatives? And why was it accepted so uniformly across the whole region, despite its obvious drawbacks for the self-interest of the national parliaments called on to ratify it? The thesis of the book is then outlined. Judicial empowerment is explained as the empowerment, in fact, of a new social class, a transnational community networked around elite legal professionals. A literature review critiques some of the most pertinent works in the fields of law, political science, international law, and socio-legal studies, showing the connections between their findings and the instant thesis. The complex methodological approach used herein is finally outlined, consisting of multi-modal research strategies, sources of data, and forms of reasoning: case study and process tracing, Grounded Theory, comparative historical analysis, and logic triangulation.Less
This chapter defines the monograph's scope of inquiry – to elucidate the origins of Judiciary branch institutions in the newly democratizing countries of Central and Eastern Europe – and sets out its research puzzles: how came the institutional design of the Judiciary to be patterned on always the same transnational template which happens to maximize judicial empowerment to the exclusion of alternatives? And why was it accepted so uniformly across the whole region, despite its obvious drawbacks for the self-interest of the national parliaments called on to ratify it? The thesis of the book is then outlined. Judicial empowerment is explained as the empowerment, in fact, of a new social class, a transnational community networked around elite legal professionals. A literature review critiques some of the most pertinent works in the fields of law, political science, international law, and socio-legal studies, showing the connections between their findings and the instant thesis. The complex methodological approach used herein is finally outlined, consisting of multi-modal research strategies, sources of data, and forms of reasoning: case study and process tracing, Grounded Theory, comparative historical analysis, and logic triangulation.
Cristina E. Parau
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780197266403
- eISBN:
- 9780191879593
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197266403.001.0001
- Subject:
- Law, Legal Profession and Ethics
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational ...
More
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.Less
Studies of the fate of Judiciaries in post-Communist Central and Eastern Europe (CEE) have been rare and attempts at causal explanation rarer. This study found that interlocked transnational networking empowered a minority of elite Judiciary revisionists to entrench their institutional template in Eastern European constitutions, setting these transitional democracies on a trajectory toward a global trend of the judicialization of politics. The first, crucial step in that process is traced: the formal disempowerment of democracy through Judiciary revisions that ordinary people and politicians in Central and Eastern Europe little heeded. The causal nexus converging on this outcome is explained. Why it matters is because the revisionist template reorients that most venerable of non-majoritarian institutions beyond adjudication of the guilt or innocence of subjects of state power under legal certainty – the classical role of modern courts – toward the improvisation of public policy, with or without the consent of the majority of the governed, by ‘finding’ it in constitutions; the unique legitimacy of which derives from the prior ratification of a supermajority. The question of who shall have the final disposition of contested constitutional meaning – the Executive, Legislature, Judiciary, the People, or All of these – implicates sovereignty itself and whom it shall rest on: the last word is sovereign for practical purposes. The interdisciplinarity of this study will appeal to a wide audience: scholars of law and politics and socio-legal studies, social scientists researching elite transnationalism and European integration beyond the EU, even institutional design practitioners.
Cristina E. Parau
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780197266403
- eISBN:
- 9780191879593
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197266403.003.0008
- Subject:
- Law, Legal Profession and Ethics
This chapter concludes the volume. In normative terms, the Judiciary revisions imposed on CEE since 1989 (and now the West) exhibit an unmistakable pattern: they transfer political power away from ...
More
This chapter concludes the volume. In normative terms, the Judiciary revisions imposed on CEE since 1989 (and now the West) exhibit an unmistakable pattern: they transfer political power away from majoritarian institutions to non-majoritarian ones, from elected officials to judges; exclude the ‘sovereignty people’ from a voice in the Judiciary’s make-up; and insulate judges from accountability and liability to democratic boundaries. This Template amounts to the Americanization of the European Judiciary, and reflects the Network Community’s ambition to rule through the Judiciary (in Europe, but perhaps globally). In causal terms, a nexus was discovered explaining the Template’s puzzling ubiquity: the agency of a class of transnational elites sharing a collective identity and solidarity; their paradigmatic assumptions about the Judiciary’s role in democracy, and the coerciveness of their hegemonic discourses, which the public is unable to fathom or negotiate. The Network’s motivation is not solely the aspiration to solve mankind’s problems, but the all-too-human will to the power to arbitrate between all other political actors. A crucial but ‘invisible’ causal factor was the omission by the main veto players, elected representatives in parliaments, to forestall their own disempowerment.Less
This chapter concludes the volume. In normative terms, the Judiciary revisions imposed on CEE since 1989 (and now the West) exhibit an unmistakable pattern: they transfer political power away from majoritarian institutions to non-majoritarian ones, from elected officials to judges; exclude the ‘sovereignty people’ from a voice in the Judiciary’s make-up; and insulate judges from accountability and liability to democratic boundaries. This Template amounts to the Americanization of the European Judiciary, and reflects the Network Community’s ambition to rule through the Judiciary (in Europe, but perhaps globally). In causal terms, a nexus was discovered explaining the Template’s puzzling ubiquity: the agency of a class of transnational elites sharing a collective identity and solidarity; their paradigmatic assumptions about the Judiciary’s role in democracy, and the coerciveness of their hegemonic discourses, which the public is unable to fathom or negotiate. The Network’s motivation is not solely the aspiration to solve mankind’s problems, but the all-too-human will to the power to arbitrate between all other political actors. A crucial but ‘invisible’ causal factor was the omission by the main veto players, elected representatives in parliaments, to forestall their own disempowerment.
