The Dual Judicial State of Illiberal Regimes

Weakening of the independent judiciary is at the center of the systematic rule of law violations of illiberal regimes. In Hungary and Poland, courts and judges had been subject to political pressure, institutional paralysis, and personal removal due to attempts of judicial capture by the ruling political parties, who want to change the rules of the game, as the courts can be the final checks against authoritarian tendencies since they decide on the legality of elections or the persecution of political opponents. Some of the judges have resisted, others succumbed to political pressure and still others have built their careers in the autocratizing state. We argue a dual judiciary system has developed, where independent judges are confronted by superiors and colleagues loyal to the regime. To better understand these dynamics within the judiciary, we adopt the concept of the Dual State (Ernst Fraenkel) that postulates that authoritarian changes do not penetrate all democratic institutions. Although the notion of the Dual State is associated with German fascism, we think it is helpful conceptually in exploring rule of law violations – and thus democratic backsliding – in illiberal democracies that instead of judicializing politics, politicize the judiciary. This way, the duality within the judiciary system of illiberal regimes would translate into the duality of the "Normative State" vs. the "Prerogative State". The "Normative State" follows laws and resists the politicization of judicial decision-making, whereas the "Prerogative State" applies authoritarian logic, and instrumentalizes law with the aim of power hoarding, rather than maintaining the division of power and checks and balances. Comparing the dual judicial state of the two countries, we argue that the "Prerogative State" uses constitutional law or cardinal law to subordinate the independent judiciary, but ordinary laws and especially police laws are also affected by authoritarian logic. No realms of law remain completely independent of political pressure, yet a number of courts and a number of judges resist political pressure of the "Prerogative State" and continue to interpret legal text in the framework of rule of law, maintaining the "Normative State". At the same time, since constitutive institutions of the government such as the constitutional courts, higher courts, or overseeing commissions have been subverted and colonized by oligarchic or party actors, this results in a constant clash of independent judges and their superiors, the latter pushing through particular interests – often in the name of the "true people", "sovereignty" and "nation". In return, independent judicial actors often ‘publicize’ judicial action through the media and ‘externalize’ the conflict to the European level to be able to fight back authoritarian pressure. In turn, this is framed by loyalist judges as a clash of national sovereignty with supra-national power to discredit claims of violation of democratic rule of law and legitimize further political intervention against the rule of law.