Judges against the government. Towards a typology of non-partisan opposition and resistance

Democratic decline and paths towards autocracy have been extensively studied in recent years (Lührmann and Lindberg 2019; Coppedge et al 2022 among others). Yet, the rise of autocracies has been accompanied by instances of democratic resilience, resistance and opposition, less scrutinized both theoretically and empirically. Once an autocratization process starts, the judiciary is often one of the first targets of the political authority which seeks to increase its power by limiting judicial independence and violating or abusing the rule of law (Moustafa and Ginsburg 2008). Even if several historical examples show that the judiciary succumbed to autocratizers, in some contexts judges implemented a variety of in- and off-bench strategies to oppose the limitation of their independence or the violation of rights. With a focus on recent developments in Central and Eastern Europe, scholars examined judges’ responses to the dismantlment of the rule of law by using interchangeably the terms of opposition and resistance. If the concept of resistance has been used without a specific definition to refer to episodes of active or passive disagreements manifested during a process of autocratization (Matthes 2022; Bodnar 2021; Bojarski 2021), opposition studies – despite their high degree of conceptual clarity and methodological sophistication – remained largely confined to party politics, notwithstanding several pleas aiming to extend the scope of the concept towards non-partisan actors (Blondel 1997, Helms 2004, Weinblum and Brack 2011). By examining the responses of judicial actors in Poland, Romania and Hungary to the limitations of judicial independence over the past decade, we argue that opposition and resistance reflect similar phenomena yet with different intensities and implications. Drawing on a set of semi-structured interviews, as well as the analysis of the judges’ professional associations official documents and an original survey distributed among judges in Poland and Romania, we show that on the one hand, opposition can be more or less institutionalised and takes the form of an organised and collective disagreement (Weinblum and Brack, 2011) against policy and polity. It is usually thought of as having a structure, organisation, leadership and goals. Building on the classic opposition studies (Dahl 1966, Blondel 1997), it can be analysed in terms of i) overarching goals (e.g. are judges contrasting a policy or does their principled opposition entail the tenets of the political regime?), ii) strategies (e.g. are judges following corporatist repertoires or rather engaging in public demonstrations and other protest-based strategies?), iii) size/cohesion (e.g. how diffuse is opposition within the judiciary?), and iv) network (e.g. does judges hold coalitions with other institutional, political or civil-society actors?). In contrast, resistance, we argue, is rather an individual strategy combining principled opposition goals with protest-based strategies and, crucially, expressed despite the governmental repressive action (on a legal, institutional, political, or private level) to such acts. The article shows that opposition and resistance can co-exist and re-enforce each other, depending on the context.