Judges under Stress JuS - the Breaking Point of Judicial Institutions

How do rulers seek judicial compliance with authoritarian measures, how do judges react to such measures, and what are the conditions under which an independent judiciary breaks down? We will adress these questions from the perspective of institutional theory, looking at the experiences of Central and Eastern European states under communist rule. We will compare these experiences with experiences from other countries.

The Authoritarian Challenge

There are courts in Europe that are facing powerful political forces calling for illiberal measures. It is to be expected that the higher degrees of social concern and conflict that we experience in Europe today will challenge basic elements of the rule of law and thus put higher demands on the judiciary, both in the post-communist countries and in countries of Western Europe. The project will look at how rulers seek judicial compliance with authoritarian measures, how judges react to such measures, and the conditions under which an independent judiciary breaks down. It will explore how the conditions of an independent judiciary differ in countries with different legal traditions. This will be studied by surveying differences in the fascist and communist approaches to law. Based on a historical comparison of different European countries, we will explore whether variances between different countries can be can be explained by differences in the long historical traditions of their legal institutions.

Multidisciplinary approach

The project is multidisciplinary in the intersection between law, legal theory, legal history and sociology of law. It will employ the normal tools of legal analysis on the legal material of the time of communism in the selected country studies. It will also employ empirical studies by searching for evidence of the courts being used as mere mock trials in political cases and for evidence of rulings in political cases where judges acted independently and did not return the verdicts expected by the regime. We will search for and examine laws delimiting the jurisdiction of the courts in relation to security forces and detention regimes and to what extent such cases were brought to the courts and how they were dealt with. We will also see to what extent the operations of security forces and political police had a formal legal basis, and to what extent they operated in contradiction to formal legal requirements. We will study this by examining legal reasoning in court decisions and legal doctrine on issues and laws that are particularly oppressive in nature or questionable from the point of view of national and international standards.

Financing

The Project is financed by FRIPRO-funding from the Research Council of Norway and the University of Oslo.

More information

See the project description


Contact

Hans Petter Graver
Department of Private Law, PB 6706, St. Olavs plass, 0130 Oslo, Norway