The Rise of Weaponised Legalism

The institutional judicial reforms pursued by the Polish and Hungarian government have been framed as democratic backsliding and the rise of autocratic legalism (Scheppele 2018; Sadurski 2018; Halmai 2018, etc). Instead, the process should be interpreted as the rejection of the judicialized politics norm and the rise of weaponized legalism in its wake. A weaponized legal regime is compatible with democratic political competition. In it, political competitors reach regularly for the law to undermine their opponents, strengthen themselves and their allies, or advertise their power. One manifestation of weaponized legalism is the politicization of judicial careers and frequent judicial reform measures. Judicial appointments, promotions, demotions, and discipline provoke heated political fights. Politicians who expect to wage legal attacks against opponents or to have to fend them off pay close attention to who sits on the bench. Incumbents perennially push judicial restructuring as they try to gain influence over the courts or try to close channels of influence opened by their predecessors. Another manifestation are high volumes of litigation involving important political actors in different legal issue areas. An explosion of corruption prosecutions is particularly likely. In many countries, political corruption and its mechanisms have been in place for decades, so a greater volume of anti-corruption prosecutions shows that political adversaries have started using criminal law to fight their battles, rather than that law enforcement has discovered effective ways to uncover and prosecute corruption. Finally, due to the high levels of litigation involving political actors, weaponized legalism is characterized by extensive media coverage of the courts. Public discourse on the courts does not assume that cases are filed or decided in good faith, but rather that they serve as instruments in a political fight. The media bounces around competing conspiracies about who has managed to weaponize the law in each case.