Panel 1: Sociology of courts, tribunals and legal professions
Courts, tribunals and legal professions form the center of “the law”. The law’s independence translates into independence and autonomy of judicial institutions and professions. The panel discusses how these are embedded in different social and political settings.
Rafael Mrowczynski: Post-socialist Transformations, Law-based State (Rechtsstaat) and Institutional Autonomy of Legal Professions
Modern legal systems are predominantly run by professionals. Hence the collective professional autonomy, usually institutionalized as some form of ‘occupational control of work’ (Freidson) or even a full-fledged self-governance regime, is perceived as part and parcel of the law-based state / the rule of law. This autonomy is in other words a crucial building block of the ‘independent’ judicial power. As a consequence, institutional professionalization of jurists has been seen as an important factor in post-socialist transformations. However, collective professional autonomy has also become subject to fundamental criticism by different political and economic actors who usually refer to market and/or democratic principles. From this perspective, (legal) professions advance ‘monopolistic’ claims, practice ‘social closure’ and even undermine democratic control of state institutions by the general public. Social scientists themselves are divided along similar lines when it comes to the theorizing on the ‘professional phenomenon’ in modern societies.
In my presentation, I will explore the complex relationship between institutionalized professionalism and democratization of post-socialist states focusing mainly on Poland—a country with a relatively strong tradition of professional autonomy dating back into the pre-socialist period. Shortly after the demise of state socialism, Polish legal professions developed their autonomous self-regulatory institutions. It is true for lawyers in private practice as well as for judges. However, these institutions have increasingly become a bone of political contention since the mid-2000s. After more than a decade since this ‘opening of the corporations’ had started, the re-configurations and even dismantling of self-regulatory institutions has reached the very heart of the Polish judiciary. My presentation will put these processes into a broader context of changes affecting professions and their institutionalized autonomy in post-socialist as well as Western countries.
Larissa Vetters: Aspirations of legal concord in asylum appeal hearings. Rule of law practices among administrative judges and their wider perception in public debates about migration and the rule of law in Germany
This presentation explores how German first instance administrative judges navigate the practical, political, legal and ethical dilemmas of deciding asylum appeals. Asylum adjudication is a field in which the legitimacy of judicial institutions and due process notions are contested from many sides: Human rights oriented and pro-asylum activists criticize the legislative changes that restrict procedural and substantive rights as well as the frequently arbitrary outcomes of asylum adjudication. Right-wing, anti-immigration groups, on the other hand, depict the possibilities of appeal as a misuse of the system by asylum seekers and accuse courts of being overly liberal as well as out of touch with sentiments of justice in the general population.
Based on ethnographic observation, conversation and focus group discussions with judges, I show how an ambiguous doctrinal idea, the notion of legal concord (Rechtsfrieden), acquires relevance as a form of internal self-reflection and practical critique among judges, while at the same time having unintended effects in larger public debates about migration control and the rule of law in Germany.
Britta Rehder: Strategic Litigation and Judge-Made Law. Research Questions and Perspectives
This presentation refers to the literature on adversarial legalism and its impact on courts and judge-made law. Whether this judicialized style of conflict resolution, known from the US-American legal system, is spreading to Europe (“Eurolegalism”), has been a hotly debated topic in political science and socio-legal research for many years. The debate is fostered by the process of digitalization and the impact of so-called legal technology: new digital law firms or legal service providers have emerged which are capable of collecting and processing ten thousands of lawsuits to put pressure on the legal (and on the political) system, e.g. in the case of the “Dieselgate”-scandal over emissions manipulation. Most of this literature reflects on the role of law firms, the emergence of “class-action-style-lawsuits” and their implications for transforming patterns of interest intermediation and policy-making. But we do not know much about the effects of strategic litigation on courts and their decisions in continental Europe, especially in those legal fields where judge-made law is important. My contribution screens the existing literature and presents some ideas and research questions on this topic.
Panel 2: Sociology of Constitutional Courts
Constitutional jurisprudence has long been considered political. The panel presents the newest approaches to empirical research on constitutional courts and discusses the resulting new insights to an understanding of an “illiberal democracy”.
Oliver Lemcke: Empirical Research on Constitutional Courts: New Approaches and New Designs
This contribution provides an overview about new social science approaches of analyzing the role of constitutional courts, their jurisdiction and judicial governance. The focus is on the many-fold empirical studies and the aim is to find criteria for a typology of the main paradigms underlying the different research designs, theories and methodologies. However, the guiding idea on which this typology is based has a broader scope. It seeks to understand the existing gap between the two ‚cultures’ of court analyses, the juridical and the sociological culture, and tries to identify and evaluate the various attempts of bridging this gap.
Hanna Dębska/Tomasz Warczok: Variable Geometry of Legal Legitimization. The Polish Constitutional Court and the „Populist” Revolution
Populism has become a buzzword today. Politicians, media commentators and social scientists point to the dangers of rising xenophobic, anti-elite and anti-liberal social sentiments and the accompanying decline of social trust in democratic institutions. These phenomena are observed throughout Europe (and in America), however, in Hungary and Poland, they are implemented in practice, in the form of governments referred to as “illiberal democracy”. In Poland, this situation is particularly striking, because the authoritarian regime of state socialism began to break for the first time there, and in later years the “Polish path” was presented as a model transition from an undemocratic regime to a fully democratic and free market order.
The logic of “populist” governments in Poland will be presented on a detailed analysis of the space and trajectory of the Polish Constitutional Court. In contrast to speculative approaches, it is a fully empirical study, revealing, in a broader historical perspective, the social mechanism of the illiberal democracy construction. Applying Pierre Bourdieu’s field theory and geometric data analysis make it possible to reveal hidden structures of power and the paradoxical role of the law in the “populist” ruling.
Silvia von Steinsdorff: Beyond socio-political sources of legitimation: The Constitutional Court of Turkey between legal and political reasoning
Panel 3: Situated positions in judging
The legitimacy of the law depends as much on independence as on objectivity. Feminist criticism has long addressed gender biases in judging. The panel gives examples of the role of gender in judging and discusses how objectivity could reflect the socially situated positions of judges.
Ulrike Schultz: Effects of the Feminization of the Judiciary: Do women judge differently?
Law making and legal decision making was almost exclusively in male hands till well into the 1970s. Does the feminization of the judiciary change procedure and outcome? This was expected by difference feminism stressing female caring attitudes. It became outdated in the 1990s by sociologists deconstructing sex and gender. After the turn of the millennium it was replaced by individualist approaches which made it difficult to formulate theories of sex and gender and prove them empirically. There are however still strong common beliefs about sex and gender differences.
So what about gender in judging? I will give examples of typical “male” decisions by the white old conservative men at the Supreme Federal Court in the post WW II times, demands for feminists decision making and will sum up results of international and national research on gender effects in judging. A gender bias collides with the principles of universalism and equality and the demand for judges´ objectivity and neutrality. To counterbalance it gender awareness and sensitivity are needed.
Eva Kocher: Objectivity and situated judging
Independence of the judiciary is an essential element of the rule of law. It provides, inter alia, for the neutrality of judging. However, it does not tell us anything about how judges can use the space of independence to arrive at “objective” judgments. Moreover, sociology questions the capacity of people (= social human beings) to take a position outside of social structures and conflicts, the way legal figures of the “third and objective person” have been suggesting. The contribution shows how objectivity has been legally and institutionally constructed and discusses concepts of objectivity which could acknowledge and reflect the socially situated positions of judges.
Panel 4: Critiques of the law from the political right
Critiques of the law and denials of its autonomy have long been part of narratives from the political Right. The panel discusses different motifs in and framings of these narratives.
Marta Bucholc: National-conservative critique of law in Poland: a postcolonial narrative of postsocialist legal transformation
National-conservative party “Prawo i Sprawiedliwość” has been in power in Poland since 2015. In this period, its critical assessment of the balance of postsocialist transformation in Poland has become the endorsed narrative of government, of the parliamentary majority and of the presidential office alike. In my talk, I will explore those aspects of this narrative which relate directly to the legal dimension of the transformation, including in particular the origins of the rule of law in Poland, the role of constitutional court and the independence of the judiciary. I will identify the main motifs of the critique of law coming from the political Right represented by “Prawo i Sprawiedliwość” based on a historical overview of its selected legislative initiatives since 2015. My main goal is to develop an understanding of the radical and critical potential of PiS narrative as set against the more familiar theoretical accounts of critical approaches with different political orientations. I will further explore how this variant of critique of law is framed provided by an interpretation of the transformation drawing on postcolonial and dependency studies, based on an analysis of the 2019 electoral agenda of “Prawo i Sprawiedliwość” published in September 2019.
Andrea Kretschmann / Walter Fuchs: Right-wing Legal Aesthetics: A force against the Rule of Law
Attacks on state and law by the right-wing “Citizens of the Reich”-scene in Germany are increasingly being discussed by political science and socio-legal studies scholars. However, so far little attention has been paid to the fact that these actors strongly draw on cultural mechanisms to enforce their “own” law respective oppose the rule of law. Thus, their “legal” practices are highly aesthetic: Within the framework of their activities, they create pseudo-state symbols like emblems, logos or passports. In our paper we examine how legal aesthetics are used by the “Citizens of the Reich” against the rule of law as a weapon. With this, we bring forward the argument that cultural symbols can be used as instruments of power that block and attack constitutional procedures.
Panel 5: Critiques of Legal cultures in socio-legal perspectives
Socio-legal studies show that it is not only legal rules and institutional arrangements that take care of the law’s independence and autonomy. Legal culture plays an important role in safeguarding and embedding social practices of autonomy. The panel critically discusses these contexts in comparative perspective.
Jan Winczorek / Karol Muszyński: The access to justice gap and the rule of law in Poland
As any social phenomenon, the crisis of the rule of law in Poland is perpetuated by many forces. These range from economic inequalities and related class tensions, through institutional failings and dysfunctionalities of the political process, to proliferation of new media, long traditions of radical political rhetoric and idiosyncratic views of some party leaders. Current developments should thus be seen in a wide perspective. Remarkably, whilst the crisis erupted with a full force after the takeover of political power by the populists, the symptoms of its coming had been around for a while. It is also dubious if it may be overcome by mere swing of the electoral pendulum.
In our paper we focus on one set of factors contributing to these adverse developments. We claim that the significant access to justice gap had facilitated the development of popular support for dismantling of institutions of the rule of law. The gap manifests itself in the hardships in obtaining legal advice and using legal institutions, poor public legal education initiatives, insufficient access to legal information, inefficient courts and public administration as well as formalistic adjudication practices. As a result, the legal system has not been sufficiently inclusive, leading to the development of alternatives to formal law and a sense of legal deprivation in many members of the public.
To substantiate these claims, we use data from a number of empirical studies on access to justice in Poland, including but not limited to a 2018 study of access to justice in small and medium enterprises. By utilising quantitative (survey of 7292 business owners and managers) and qualitative methodologies (101 IDIs) in the paths to justice tradition, it had provided insight into nature of legal problems experienced by such entities, methods they use to resolve such problems and meanings associated with these experiences and activities.
The findings contradict the belief that the crisis of rule of law may be culturally driven. We find only limited evidence of anti-legalistic sentiment in both quantitative and qualitative studies. Rather, the decisions not to use law appear to be well-calculated and rational. In this light, some strands of public debate stressing the role of limited prevalence of legalistic attitudes and lack of acceptance for legal infrastructure in the general public appear to be based on class stereotyping rather than empirical evidence. Further analysis suggests that one method of counteracting the crisis is to provide better access to justice for citizens by means of non-institutional activity. This concerns changes in how legal services are delivered and practicing more discursive forms of adjudication.
Daniel Witte: Rule of law and legal culture. On cultural conditions, textures and effects of a legal form
Der Beitrag fragt nach dem Verhältnis von Rechtsstaat und Rechtskultur und beleuchtet diese Relation auf drei Ebenen. Entgegen verbreiteter (etwa auch im Ankündigungstext des Workshops aufgerufener) Annahmen lässt sich der moderne Rechtsstaat gerade nicht auf seine formal-rationale Logik und Autonomie reduzieren. So gilt das vielzitierte Böckenförde-Diktum nicht nur für den liberalen, „säkularen“ Verfassungsstaat im Allgemeinen, sondern auch für seine Form als freiheitlich-demokratischer Rechtsstaat, während die Rolle der Rechtskultur ihrerseits dabei nicht etwa auf zivilreligiöse Grundlagen und Bindungskräfte reduziert werden kann. Insofern geht es, in Anlehnung an Durkheim und Parsons, in diesem Beitrag zunächst um die nicht-rechtlichen Grundlagen einer Form juristischer Praxis, sodann zweitens aber auch um eine Kultur des Rechtsstaates und der Rechtsstaatlichkeit, die der Tradierung, der Pflege und auch der Inszenierung bedarf, sowie drittens um kulturelle Effekte dieser Form, die u.a. an der Hervorbringung gesellschaftlicher Imaginationen und spezifischer Formen von Subjektivität beteiligt ist. Der Beitrag schließt mit einigen Anmerkungen zu gegenwärtigen Angriffen auf den Rechtsstaat, die sich vor diesem Hintergrund nicht zuletzt als radikale Infragestellungen seiner kulturellen Grundlagen und Implikationen deuten lassen.
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