Conclusions

This chapter concludes the volume. In normative terms, the Judiciary revisions imposed on CEE since 1989 (and now the West) exhibit an unmistakable pattern: they transfer political power away from majoritarian institutions to non-majoritarian ones, from elected officials to judges; exclude the ‘sovereignty people’ from a voice in the Judiciary’s make-up; and insulate judges from accountability and liability to democratic boundaries. This Template amounts to the Americanization of the European Judiciary, and reflects the Network Community’s ambition to rule through the Judiciary (in Europe, but perhaps globally). In causal terms, a nexus was discovered explaining the Template’s puzzling ubiquity: the agency of a class of transnational elites sharing a collective identity and solidarity; their paradigmatic assumptions about the Judiciary’s role in democracy, and the coerciveness of their hegemonic discourses, which the public is unable to fathom or negotiate. The Network’s motivation is not solely the aspiration to solve mankind’s problems, but the all-too-human will to the power to arbitrate between all other political actors. A crucial but ‘invisible’ causal factor was the omission by the main veto players, elected representatives in parliaments, to forestall their own disempowerment.

Thesis and antithesis: To check or not to check the Judiciary

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.

The Network Community in action

This chapter investigates the Network Community in action effecting its common agenda, the empowerment of the Judiciary and correlative disempowerment of the elected branches of democratic governments. A mainstay of the Network’s modus operandi is the precept ‘personnel is policy’. Its members are discovered to coordinate each other through a deliberate cultivation of mutual interdependence which renders the Community as a whole politically more successful than if its members acted separately. This phalanx-like solidarity in action in turn empowers the Network to advance a common agenda on the internally divided nation-states of Europe, both East and West. Nations that have submitted to it have found it more difficult than anticipated to escape, once the agenda proved detrimental to their interests.

The Template

This chapter analyses the origin and evolution of the Network Community’s transnational Judiciary design Template, which has now become settled public policy in post-Communist Central and Eastern Europe, and beyond. Consisting of the Constitutional Court, the Judicial Council, and the Magistrates’ Training Academy, the Template is rooted in US Judiciary practice insofar as judicialization in the USA inspired contemporary paradigmatic thinking in Europe. The Template has maximally empowered the Judiciaries of CEE with the attributes of supremacy and autonomy, whilst disempowering all other political actors to make public policy in defiance of judicial preferences, even on issues that do not touch the essential judicial values of the guilt or innocence of those subject to State power. The long-term goal is the anti-majoritarian revision of public policy and society. Yet the Template enjoys little popular legitimacy, having been propagated into post-Communist CEE to practically no resistance from people and nations unsure how to govern themselves. Since then, the Network Community has shown zero tolerance of national movements to revisit the Template.

The ambit of the Network Community

This chapter explores the Network Community’s historical antecedents and presents an inventory of its membership and other key resources arisen from networking and constituting the basis of their ambitious expansion. The Community is shown to encompass agents both individual and collective, as well as formal and informal institutions. The core of the Community is made up of elite legal professionals. Associated actors include functionaries in international and supranational organs such as the Council of Europe and the European Commission; an elite minority of national officials and dignitaries; legal academics; officers of philanthropic organizations; even elite media. All these actors network with each other, creating a power resources pool on which they all draw in their pursuit of self-empowering interests, both individual and collective.

Introduction: Argument and methods

This chapter defines the monograph's scope of inquiry – to elucidate the origins of Judiciary branch institutions in the newly democratizing countries of Central and Eastern Europe – and sets out its research puzzles: how came the institutional design of the Judiciary to be patterned on always the same transnational template which happens to maximize judicial empowerment to the exclusion of alternatives? And why was it accepted so uniformly across the whole region, despite its obvious drawbacks for the self-interest of the national parliaments called on to ratify it? The thesis of the book is then outlined. Judicial empowerment is explained as the empowerment, in fact, of a new social class, a transnational community networked around elite legal professionals. A literature review critiques some of the most pertinent works in the fields of law, political science, international law, and socio-legal studies, showing the connections between their findings and the instant thesis. The complex methodological approach used herein is finally outlined, consisting of multi-modal research strategies, sources of data, and forms of reasoning: case study and process tracing, Grounded Theory, comparative historical analysis, and logic triangulation.

The assumption of intellectual-moral superiority

This chapter evidences that the Network Community assume judges (viz., themselves) to be morally superior to all other actors in a political context because of their sole reliance on intellect. The political ramifications of this assumption are analysed: the practically limitless power to expand the scope of legal texts through ‘activist’ interpretation (the ‘living constitution’); the power to superintend democracy; the power to silence all other voices asserting constitutional meaning, even the people themselves. The end goal is the power to reconstruct society in the Network Community’s own image, according to its presumptively superior norms and values. It is inferred that the hegemonic power of the intellectual-moral superiority assumption constitutes a (possibly the) major cause of judicial power over the nation-states of Europe, and the normative basis of the judicialization of politics.

Identity and solidarity

This chapter identifies the Network’s definite boundaries in the sharing of collective identities amongst legal professionals and transnational elites, together with its culture of consensus; all of which serve to keep out interlopers, dampen internal conflict and the impact of veto players, and consolidate power to move the outside world. These identities consist in the solidarity of like-minded, thus transnationally networked, legal professional elites who coalesce in order to build world peace, first through international law and latterly through the supranational organs of European integration. Shared identity and solidarity are necessary for elite collective agency, without which the Network Community can cause nothing to happen in public affairs.