The Gradual Emergence of the Juristocratic State

The Election and Democracy Ludovika Research Group has organized its latest conference in the topic of gradual emergence of the juristrocratic state. The event was funded by the Public Service Development Establishing Good Governance Project (PADOP-2.1.2-CCHOP-15-2016-00001) and it gave the opportunity for prominent international and Hungarian researchers to discuss the concept of the juristocratic state. Simultaneous interpreting in English and German was provided to the large number of participants during the course of the day.

The Széchenyi Assembly Hall at the Ludovika Campus served as the venue of the event, which was opened with the welcome speech of András Téglási, Head of the Election and Democracy Ludovika Research Group. Mr. Téglási also moderated the debates after each lecture.

The opening lecture was delivered by Prof. Dr. Béla Pokol who is an internationally renowned scholar of the topic. He is Doctor of the Hungarian Academy of Sciences, member of the Constitutional Court of Hungary and has already written a book on this topic which has been published in three languages. He explained that the emergence of the juristrocratic state is a relatively new phenomenon and, from a specific perspective, it can be contrasted to the democratic state. The concept of the constitutional court however is not recent, it was already established in the United States in the 19th century with the aim of deciding on disputes between federal states. After the dissolution of the Austro-Hungarian Monarchy, this institution also appeared in Austria in 1920, which, after World War II, was followed by the establishment of the constitutional courts in the Federal Republic of Germany and also in Italy. According to Mr. Pokol, the political science theoreticians had already challenged the model of constitutional courts; however they were the only critics of it back then. Nevertheless, the society - because of its prosperity - did not deal with this topic. Following the fall of their respective dictatorial systems, Spain and Portugal have taken over this model, and after the fall of the Iron Curtain, this concept has become popular among Eastern European states as well. Since then, further African and Asian states have also implemented this concept. However, according to the presenter, the juristocratic state is opposed to the basic principle of why constitutional courts are established, since it does not promote the separation of powers, but instead at some level it restricts democracy and the representation of the people. Because of this reason the focus area of his research is to review the current situation and to improve it.  Following the presentation, an interesting debate took place between the participants about the role of the constitutional courts. Béla Pokol highlighted that he was not against constitutional courts, but on the contrary, he was for them. The aim of his research is to define how to make these institutions more open and more democratic.

The next topic in the morning session was presented by Prof. Dr. Alfred J. Noll from the University of Natural Resources and Life Sciences, Vienna (Universität für Bodenkultur Wien). In his presentation, he explained how the institution of the constitutional court has been aligned with the Austrian political system. "As the amen at the end of the prayer, the constitutional court is part of Austrian thinking the same way," said Prof. Dr. Noll. Later, he pointed out that constitutional courts are often accused of being too political. With six examples, he showed how this independent body can play a political role, even if in many cases the decision of the members is not political. One of the examples was their statement in issues with major social significance that can divide the public opinion, or the political influence in the appointment of constitutional court judges. The latter is completely against the basic principles of the institution, which is its political independence. In the closure of his presentation, Dr. Noll said that whichever country one may mention, it is necessary to consider both political and legal aspects when assessing the work of the constitutional court.

The last guest presenter before the lunch break was Prof. Dr. András Zs. Varga, member of the constitutional court, university professor at Pázmány Péter Catholic University, Faculty of Law and Political Sciences. At the beginning of his speech, Mr. Varga highlighted that 25 years ago, when he was studying law at the university Béla Pokol was his professor and now they are colleagues at the Constitutional Court of Hungary. With this anecdote, he gave an insight to the young audience about the career possibilities in this area. He further elaborated that the insitution of constitutional courts and even the constitutionality may limit democracy. He argues that a state is totalitarian not only when unconstitutional deeds are done, but also when the state overuses the power of the constitution. If the concept of constitutionality is used without limits, then it may be filled with a content which is limiting democracy.

The afternoon session of the conference was opened by Prof. Dr. Adam Sulikowski, professor of University of Wroclaw, whose presentation was about “Constitutional Liberalism and Democracy”. In his introduction, he spoke about the great political theorists including Emmanuel Joseph Sieyès, James Madison and Alexander Hamilton.  Dr. Sulikowski defines the emergence of the liberal juristocracy during the post-WWII period, which he also calls as “judicial Marshall Plan”. He also mentionned additional examples, then he described the formation and function of the constitutional court in Poland. The body was first established in 1982 and even though it operates since 1986, it has become a key institution in 1989. Following the Polish regime change, the work of the constitutional court has been greatly respected even when it took a stand on controversial questions. Dr. Sulikowski said that the situation has been changed since 2006 because the current governing party, Law and Justice  -by questioning the decisions of the constitutional court - damages its reputation.

The Polish guest was followed by Dr. Tamara Ehs, lecturer, Department of Political Science. She, as a representative of the NGO IG Demokratie, described the Austrian situation in her speech. She described the tasks of the Austrian constitutional court and the cases in which the body was confronted with the Austrian Parliament. In her view, the question is not whether the local constitutional court influences the public life of our western neighbor, but how it does it. Dr. Ehs agreed with the previous speakers that constitutional courts play an important role, even though they sometimes exceed their original function. For instance, the purpose behind the establishment of the Austrian constitutional court in 1952 was to make decisions in controversial questions raised between federal states. She further highlighted that nowadays parties generally involve the consitutional court in cases which divide public opinion, such as same-sex marriage. “On the other hand the constitutional court ensures for the minorities that the “rules of the game” cannot be changed unilaterally. Thus, this institution is not only a check in the jurisdiction but it is also an assurance” - added Dr. Tamara Ehs.

The afternoon session continued with the lecture of Prof. Dr. Csaba Varga, Doctor of the Hungarian Academy of Sciences, Professor Emeritus at Pázmány Péter Catholic University, Faculty of Law and Political Sciences. After a short coffee break, the event was closed with the speeches of Prof. Dr. Nikolaus Dimmel who represented the University of Salzburg and of Dr. Jenő Szmodis, associate professor at the National University of Public Service, Faculty of Science of Public Governance and Administration.