Rule of Law Under Pressure: How is Judicial Resilience Created?

Recent constitutional reforms targeting designs of domestic judiciaries have reminded us both how important and how fragile judicial independence is. Current episodes from Hungary and Poland have shown that domestic courts are an easy target for governments enjoying large parliamentary majorities. Moreover, we have learned that political leaders implement a plethora of formal and informal methods of interference, skilfully using the pretence of legal language. Courts, however, are not completely helpless observers of court-curbing: far from it. Depending on the aims and formality of political inferences, courts can implement various ways of retaliating aimed at preventing, averting, or punishing the inferences of executives. Majority of these reactions – when courts act as a whole, when judges are mobilised individually, whether they act as political or legal actors and to what extent they consciously build resilience of democratic judiciary – are outside of radar of current scholarship. This paper therefore analyses resistance strategies, identifies four categories of judicial resistance and, using an example of Central European countries, demonstrates that their implementation depends on the formality and motives with which executives aim to capture the courts.