—Cristina E. Parau, Oxford University
[Editor’s Note: This is a reply to Conor Gearty’s recent review of Dr. Parau’s Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2018).]
This note is in reply to a review of my monograph Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2018) by LSE Professor Conor Gearty, Vice-President of the British Academy, titled “The Courts in Europe Today: Subverting or Saving Democracy?” and published in 16 European Constitutional Law Review 770-780 (2021). I would like to express my gratitude to the British Academy for sponsoring my research on the monograph and to Prof. Gearty for reviewing it at such length. He is enviably qualified as a human rights lawyer who can draw on first-hand observation to critique my reasoning and make the opposite case with passion. I will address his subtle blend of praise and blame for the sake of advancing our understanding of Judiciary institutions, their design and designers, which have not garnered the scholarly attention that many recent events urge. I hope my rebuttal may rise to the challenge of being commensurately incisive in the pursuit of the truth which we both seek, and that readers discern a synthesis emerging which may supersede each of our contributions.
Let me first summarise my monograph for those who have not read it. I ask merely that readers patiently attend to the following, that I may establish an overarching context. It begins with the new democracies in Central and Eastern Europe (CEE). All of their post-Communist Judiciaries were patterned on an institutional blueprint I called “the Template”, created by interveners, members of a transnational, elite community of interest in public policy that I called “the Network Community”. The Template empowered Judiciaries at the expense of the national majoritarian institutions; part of a worldwide trend since 1990 to transfer power away from representative government toward non-majoritarian, often supra-national organs. In a practical sense, this transfer privileges judges and other legal professionals over “political” actors; as well, indirectly, as the Network which the elites amongst them identify with; – rendering the Judiciary no longer a “co-ordinate” or co-equal branch of government but systematically super-ordinate to the other two of the three. The Template was made an informal condition of acceding to the European Union, suggesting that the Commission regards Judiciary supremacy (or “Juristocracy” as Gearty and his colleagues term it) as prerequisite to or at least as ideal for the supremacy of EU law. This is just one case of elite self-empowerment through popularly unaccountable institutions; others include central banks, administrative bureaux, intelligence agencies, even elite media. In CEE, Juristocracy has been everywhere formally institutionalized but nowhere questioned, until quite recently, by the politicians and publics most interested because most entangled in it; – (unlike in America, the land of its ulterior origin).
The Template is tripartite: (1) a Constitutional Court hunkering over constitutional interpretation; (2) a Judiciary Council enshrining self-government by judges “accountable to themselves” only, i.e. a “state within the state”; and (3) an Academy training judges exclusively and autonomously. In my monograph I detailed reasons for objecting to each of them; for instance, the Italian Judiciary Council on which the Template Council is modelled is famed for autonomy but hardly for impartiality. In CEE, where domestic judges have always been notoriously corrupt and partisan, the situation is drastically worsened.
But the deeper corruption is the one no one recognizes, the empowerment of a transnationally oriented crème de la crème. The actuality and makeup of this Network I became very familiar with from well over one hundred semi-structured elite interviews. It is an “actor-constellation” who conceive, advocate, and act to implement a Judiciary revision which is nothing like the classical judiciary governance of England, or of America before the 20th century. I watched the agency of a minority of elites prevail in every nation-state, against a backdrop of “veto-player dormancy”, as I called it, an odd phenomenon whereby those with all power to veto their own disempowerment do nothing and let it happen. Elite self-empowerment and veto-player dormancy seem interdependent and co-constitutive. Perhaps the veto-players are co-opted. More research into this phenomenon is called for.
The “immense researches” Prof. Gearty has credited me with revealed with great evidentiary uniformity that the kernel of European judiciary revisionism lies in an
elite community of interest consisting of overlapping, inter-locking professional associations, non-state actor coalitions, supranational functionaries which prominently feature jurists of every description … a veritable ‘network community’ of political and quasi-political actors, most having a legal background though not all. Their collaborations concentre inter alia on formal domestic constitutions especially the institution of the Judiciary … activities promoting this objective span law, politics, and academia. The community has found it advantageous to organize itself through the medium of the organs of the Council of Europe (CoE), the ‘cadre’ or operational core around which it has evolved in the last thirty years. All these networked-in individual and collective actors are inter-dependent to such an extent, and with such potency, that even without formal jurisdiction, they [may be] regarded as fontes et origines of practical, politically consequential authority (p. 6).
Its members share a sense of identity, solidarity, and collective agency; a culture of consensus serving to consolidate power by damping internal conflict; coordination and interdependence through Europe’s supranational organs; and the exclusion or marginalisation (even condemnation and public shaming) of outsiders who deviate from its norms (e.g. the Template). Behavioural “conditioning” is nothing new in political science; its efficacy is well-documented by social psychologists and by international relations scholars studying compliance with international norms under “social influence mechanisms” (Johnston 2001).
Once cemented in constitutions, the Template has far-reaching consequences for self-government. It institutionally trains judges to overwrite public policy with “their own” (their elite preceptors’) preferences on the spurious basis of constitutional texts in fact silent on the issues at bar; and to pretend to a Last Word in policy contests with elected representatives. They are not always to apply existing law to those in jeopardy, but sometimes to apply no law except the demand of plaintiffs often in none but hypothetical jeopardy, who merely want their own way even if it ruins civil defendants and tramples the consent of the governed. The latest example I know of is an ECJ Advocate General’s pressurizing the Romanian courts in a “non-binding” opinion that they legislate a same-sex marriage right from the bench, though it never existed before in any constitution or statute or in Romania’s history (Gillet 2018).
What is worse, Juristocratic proceedings condemn defendants unilaterally, overriding the separation of powers structurally embodying the presumption of innocence. Using early America as counter-template, defendants enjoyed multiple chances to be found innocent both ex post and ex ante judicial decisions: Congress could refuse to enact prohibitions ex ante or enact bills of indemnity ex post; Presidents could veto or decline to prosecute ex ante or pardon ex post. To find guilty required the unanimity of all three Branches of government; one demurror could quash the proceedings prospectively or retrospectively, leaving the “defendant“ (whether at bar or not) effectively “innocent”, hence at liberty and in possession of life and property. Judicial supremacy bypasses these subtle but freedom-critical checks and balances by proceeding directly to a finding of “guilty”, in which the other two Branches have no input (are indeed expressly excluded), on no other basis than the text, or pretext of a constitution or treaty; entailing a costly subversion of legislative transparency and legal certainty. No longer adjudicators of guilt or innocence under existing law, Juristocrats become czars of a forward-looking policy project whose Will is law; thus, the “judicialization of politics”.
Disseminated throughout Europe in the name of the rule of law and judicial independence, the Template was crafted by the few to empower themselves and their class. What do I mean by “self-empowerment”? At its most elementary, judges were ensconced in their state within the state by formal abolition of the last remaining checks on their power; and by an informal norm, a blind presumption that court decisions are the Last Word by a government body not just on the innocence of one in jeopardy, but on everything from constitutional meaning to public policy, even to the scope of their own jurisdiction over all the other government bodies. East Europeans when they rubberstamped the Template understood none of this. Thence originate all the controversies now raging over Hungary’s and Poland’s judiciary reforms and to a lesser extent Romania’s.
National politicians run afoul of the Template face an aggressive metropolitan media, e.g. BBC (2020) https://tinyurl.com/y9rzkukp (video), https://www.bbc.co.uk/sounds/play/w3cszc79 (audio). Note the power differential in this one exchange. The talk is “hard” only on selected targets, and the media’s own policy preferences are Networked-in but not transparently. The interviewer associates “rule of law” with “the EU’s fundamental principles”, but explains neither, then evades the interviewee’s simple query, “Can you define the rule of law? What does this mean?” What does it mean, indeed, and who gets to say so for us all? It is the first point Prof. Gearty makes:
Conor Gearty: In a major new book, as excellent as it is disturbing, Cristina Parau takes aim at a discrete but significant part of what most lawyers assume is an unalloyed social good: the growth of the rule of law in what the sub-title claims is “contemporary Europe and beyond” (p. 3).
A fine but important distinction is, I did not write the book about the rule of law but about “the rule of law not men” in the complete, traditional phrase. From the fact that “not men” was conveniently truncated, I surmise that someone disliked tradition teaching folk whom to mistrust. Are we quite sure what rule of law is? Tradition reminds us what it is not, namely, my subject-matter: a pan-European but historically a trans-Atlantic and so a transnational community of networked elites who, because their natural rivals for power (the people and their representatives) were “dormant”, carried through a Template which subtly conflates the rule of law with their self-empowerment as elite men: by precluding the essential contestability of law which makes it Objective Spirit in Hegelian terms, beyond capture by faction, caste, cause, or professional corps. As I wrote in the monograph,
The meaning of constitutions, especially, must be contested by multiple, competing authorities, between multiple levels and branches of government, governing elites, and the people qua political electors (or jurymen), if they are to have any meaning at all independent of a privileged body of interpreters … A text must be contested to have any objective meaning, or it will not exist (but for its bare facticity) apart from the preferences of those empowered to override all other preferences. (p. 169).
Contestability is precluded by excluding all other men from the contest, leaving judges (and the Network Community to which they belong) in effortless possession of the field of play. This is not the rule of law; it is the rule of men calling itself “the rule of law”.
Suggested citation: Cristina E. Parau, Transnational Elite Self-Empowerment and Judicial Supremacy, Int’l J. Const. L. Blog, Jan. 16, 2022, at: www.iconnectblog.com/2022/01/transnational-elite-self-empowerment-and-judicial-supremacy/