Béla Pokol

Juristocracy

Trends and Versions

Századvég Foundation

Budapest, 2021

© Béla Pokol

English translation © Ágnes Pokol

© Századvég Foundation, 2021

H-1037 Budapest, Hidegkuti Nándor utca 8-10.

Editor-in-chief: Attila K. Molnár

Cover design: Anna Albert

Interior design: Kata Bán Tóth

Proofreading: Alexandra Ell

E-book: Adrien Béky

ISBN 978-615-5164-83-5

ISSN 2732-0553

Table of contents

Part One – Aspects of Juristocracy

Foreword

1. The functions of constitutional courts – from a realistic perspective

1. The expansion of functions of constitutional court

2. Control by Constitutional Courts Based on International Law

3. The Structural Distortions of Functional Activities

4. Summary and Outlook

2. The Juristocratic Form of Government and Its Structural Issues

1. Two Types of Political Ties for Constitutional Judges

1.1. Career Judges and Recognition Judges

1.2. Politically Value-Bound v. Party-Soldier Constitutional Judges

2. Structural Issues of the Juristocratical Form of Government

3. Epilogue

3. The Juristocratic State: The Decomposition of Its Aspects

1. The Dissemination of Constitutional Adjudication and Its Growth of Power

2. The Pseudo-Constitution of the Constitutional Courts

3. The Juristocratic Form of Government

4. The Objective-Teleological Interpretation of Law: The Detachment of the Judges from the Legal Text

5. The Shift Between Rules and Abstract Principles in the Legal System

6. Politics through Judicial Processes

7. Moral Discourse and Deliberative Democracy

8. The Domestic Situation: The Juristocratic State in Hungary

4. Possibilities for Amelioration of the Juristocratic State

1.The Selection of Constitutional Judges

2. The Accessibility of the Level of the Authentic Constitutional Judge

3. The Reform Possibilities of the Team of Permanent Law Clerks

4. The Creation of Automatism for the Selection of the Rapporteur

5. The Attachment of the Constitutional Court to the Constitution

6. The Abolition of the Secrecy of the Constitutional Court

7. Separation of Movement of Lawyers from Civil Organizations

Part Two – The Double State and the Duplication of the Legal System

Foreword

5. Doubling the Legal System

1. Traditional Legal Layers

2. Democracy Pushed into the Background by Juristocracy

3. Doubling the Legal System: Legislative Law Versus Constitutional Law

4. Differences in the Structure of the Three Layers of Constitutional Law and

Legislative Law

5. Development Dynamics of the Doubled Legal System: Alternative Scenarios

6. Is it Possible to Consolidate Politically Neutral Constitutional Dogmatics?

6. Some Questions of Constitutional Law

1. General Questions of Constitutional Law

1.1. The Layer of the Constitutional Text

1.2. The Layer of Constitutional Precedents

1.3. The Questions of Constitutional Dogmatics

2. Questions of the Layers of Hungarian Constitutional Law

2.1. The Characteristics of the Text of Hungarian Constitutional Law

2.2. The Dogmatic Beginnings of Hungarian Constitutional Law

2.2.1. Constitutional Criminal Law

2.2.2. Constitutional Private Law

2.2.3. Constitutional Labor Law

2.2.4. Constitutional Finance Law

2.3 The Precedent-Layer of Hungarian Constitutional Law

7. An Alternative Arrangement of Duplication: Constitutional Law Versus Simple Law

1. The German Concept of Constitutional Law Versus Simple Law

1.1. The Position of Robert Alexy

1.2. The Position of Philip Kunig

1.3. Analysis by Matthias Ruffert

2. Lessons from the Alternative Arrangement of the Duplication of the Law

8. Specified Constitutional Laws or Constitutional Branches of Law

1. Constitutional Private Law

2. Constitutional Labor Law

3. Constitutional Criminal Law

4. Constitutional Finance Law

5. Theoretical summary

9. Juristocracy and the Constitutional Level of Law

1. East and Southeast Asian Constitutional Adjudication

1.1. Constitutional Adjudication in India

1.2. Taiwanese Constitutional Court

1.3. South Korean Constitutional Court

1.4. Thai Constitutional Court

1.5. Indonesian Constitutional Court

2. Constitutional Adjudication in Latin America

2.1. The Constitutional Adjudication of the Superjuristocracy

2.2. Minimizing Juristocracy

3. The Double State and Duplication of Law: Summary

3.1. The Double State: Below Democratic, Above Juristocratic

3.2. The Double State and Duplication of the Legal System

10. Structural Problems of the Constitutional Level of Law and Possible Reforms

1. The Problem of the Judge Rapporteur

2. The Constitutional Judges and Their Staff

3. Setting the Agenda

4. Dilemmas of the Role of the Generalist Constitutional Judge

5. Who Should Guard the Guards?

Part Three – European Juristocracy

Foreword

11. The ECHR as a Self-Organizing Team of Registry Lawyers

1. Organizational Framework

2. The Independence of the Judges, their Loyalty to the Convention on Human Rights and their Case Law

3. Exclusivity of ECHR Case Law for Judges: Loss of Independence

12. The Decision-Making Mechanism of the Court of Justice of the European Union

1. Organizational and Operational Data

2. The Question of Judicial Independence and Objectivity in Decision Making

3. The European Court of Justice in the Power Dynamics of the Union

4. Encouragement Towards a More Ideal Situation

13. The Power Structure of the EU Juristocracy

1. The Institutional System of the European Union

2. The Tandem of Power between the Commission and the Court of Justice

3. Is there a Possibility of Resistance in Case of a Euroskeptic EP election result?

3.1. A Historical Background to the Resistance of the Member States

3.2. Internal Decision-making in the Commission

3.3. Opportunities from a Member State-friendly EP and Commission

14. The NGO Base of the EU Juristocracy

1. Juristocratic Power Groups for the Decision-making of ECHR

2. The Influence of NGOs on EU institutions

2.1. The Commission’s base of NGOs and Lobbies

2.2. The Organization of NGO Influence around the EP

2.3. Opportunities to Influence the Council and COREPER

2.4. Ways to Influence the European Court of Justice

15. EU Scholarship: A Criticism

1. The Initial State of Opposition between Federalists and Sovereigntists

2. The Organization of Transnational Academic Circles for European Studies

2.1. FIDE as a Background for European integration

2.2. The Creation of a Transnational Journal for European Studies

2.3. Federalist University Institute over Academic Circles in the Member States

2.4. Epilogue

16. Legitimacy Problems of the EU Juristocracy

1. A Juristocratic Confederation Together with a Number of

Democratic Member States as a Solution to the Problem of Legitimation

2. Exposing and Justifying the EU’s Juristocratic Character

3. Democratic but Relativized Legitimation: Input Legitimation Versus Output

Legitimation

4. The Legitimation of the EU “by” the Future and its Eventual Decay

17. The Global Export of European Juristocracy

1. Clones of the ECJ and the ECtHR in Latin America and Africa

1.1. The Latin American clone courts

1.2 The ECJ clones in Africa

2. Theoretical implications

References

Part One
Aspects of Juristocracy

Foreword

The chapters of Part One analyze the processes by which democratic states are increasingly transformed into ones of a juristocratic nature in a number of countries in the Western world, and because of this, elsewhere too. This is essentially created by the wider and wider competences of constitutional courts, but changes in the decision-making process of supreme courts shows this direction also. It has been politically debated within democratically elected bodies in the state – and among the millions of masses that cast their votes in order to determine the direction in which these issues should be resolved – that in the juristocratic state, the final decisions are made by the supreme court or the constitutional court. The constitutional courts are at the center of these developments, and thus the book’s analysis starts with an examination of the changes by which the originally limited constitutional courts were transformed into chief organs of the state. This transformation has caused the situation today – in which the final decisions of society and the state are ultimately decided by the constitutional courts.

The analyses of this book find the answer to this – after the initial modest American and then Austrian beginnings – to the radical enhancement of the German Constitutional Court, which was achieved by the U.S. military government during the occupation of Germany after the Second World War. The constituent work for the new constitution was directed by the Americans, and they wanted to create a controlled democracy over the German masses. There was an explicit intention to limit democracy on the millions of Germans and in order to do this, a powerful body was planned that intervened and blocked the possible misguided political shift of the German populace from the point of view of the Great Powers and the United States. In America at the time, such a degree of control over democracy through the constitutional judgments of the Supreme Court was still inconceivable, so it was for the Germans to experience. This limited democracy was then brought to the public with a narrative that this should be a quality democracy enhanced by constitutional guarantees. And because the aversion of millions is caused by the shadowy side of democracy – with its controversial parliamentary debates and the often mischievous clashes of politicians in the media – the solemn announcements of the constitutional courts and their working behind the public achieved a great support for them. In view of the great success, the model of limited democracy in the Germans as an improved quality of democracy then became one of the main tools of the U.S.-led powers to overturn dictatorships. Most of the time, they were pushed out, and the overthrow was supported from outside by the United States – which they strongly recommended to occur and also financially supported – during the transformation of these countries. Over the last decades, a lot of constitutional courts have emerged in a number of countries in the world and have become increasingly powerful over democratic bodies. Indeed, if good governance and quality democracy mean being decoupled from the election by millions, and the strong constitutional court over democratic bodies means the sublimation of democracy, why stop halfway and not create the best and highest quality democracies?! Of course, this change caused an even greater stifling of democracy, and – in many cases – democracy was almost annulled by it.

The analyses of the book, therefore, will then remove the already broken taboos over the research of the creation of the German Basic Law and show that the path towards ever-growing constitutional courts has been created by the occupying U.S. military government explicitly in order to limit democracy. This later became the beginning of the juristocratic state. The analysis also shows that this state operation has not only become popular in a number of countries around the world, but it also has a special legitimacy base for this. Apart from some share-out in the principles of democracy, the justification of the state’s decisions is here that these decisions are always made – with fewer or more links of reasoning – by deduction from the constitution. This special legitimacy makes it a top priority for examining how the decision-making processes of the constitutional court actually take place, and whether there are structural distortions in deriving these decisions from the constitution.

In the analyses seven such distortions are shown, and in the last chapter of the book, some modalities for refinements are analyzed. It is stated that by these refinements the juristic decision-making processes will be more appropriate to match this promise of legitimacy. On the other hand, the analysis suggests that even if we admit the state’s juristocratic base, we still have to strive to at least partially fasten it back to the principles of democracy.

1
The functions of constitutional courts – from a realistic perspective

In the mid-1970s, outside of the United States, there were only three countries in Europe that had a constitutional court. Nowadays the majority of the countries in Latin America, Europe, Asia and Africa have some form of constitutional adjudication. In addition to these, the new constitutional courts were given increasingly wide powers in monitoring and shaping the law and politics. In the first part of the study, this expansion of functions will be analyzed. Subsequently, the consequences of international judicial functions, which some new constitutional courts began to exert will be highlighted. Finally, the following analysis tries to show some typical distortions in the activity of the constitutional courts that emerge in their decision-making. By way of a conclusion and as a gesture of providing a wider perspective, the study raises the notion of the gradual establishment of the juristocratic state by the expansive power of the constitutional courts and other higher courts.

1. The expansion of functions of constitutional court

The idea of constitutional adjudication arose in the United States in the early 1800s as a consequence of the federal structure and was historically the first one to be established. The collision of federal and state power was the problem that historically caused the establishment of constitutional adjudication. Federal and state legislation collided because federal government powers were exhaustively listed in the Federal Constitution and all other powers were given to the Member States. However, there was no institution to resolve possible collisions. In 1803 the head of the Federal Supreme Court, Chief Justice John Marshall, came to the idea that such conflicts must be decided by the Federal Supreme Court. For a long time, only this function was associated with constitutional adjudication. This narrow function expanded in the second half of the 1800s in the United States, and the justices of the Supreme Court began to review legislative acts on the basis of the incorporated fundamental rights, too. With this modification, which was initially a purely formal review of legislative acts, the Supreme Court was on the one hand transformed into a court comprehensive content control, and, on the other hand, on the basis of the open nature of the fundamental rights, constitutional adjudication was gradually transformed into the position of a strong political center over the legislature.

In Europe, this new constitutional adjudication was watched with great respect, and the federal statehood of Switzerland gave the first impetus to take over this institution.{1} In 1874 a constitutional amendment made it possible here for citizens to complain before the Federal Court concerning the state acts that violated their rights. Based on this experience, the prestigious Austrian lawyer, Georg Jellinek, in a study in 1885, outlined a comprehensive constitutional adjudication for Austria.{2} In this version of constitutional adjudication, the constitutional court would not only review the legislative acts, but, in addition, would have control over the course of the elections as well as the protection of constitutional amendments, which required a qualified majority law against simple laws.

Finally, after these beginnings, the takeover of constitutional adjudication in Europe happened in 1920 in Austria with the modification that here a separate constitutional court was established, and it was not the higher ordinary courts that were charged with this function. By this modification, the character change of constitutional adjudication could be predicted. Unlike Georg Jellinek’s plans – who designed the realization of constitutional adjudication through the main, ordinary Austrian court, the Bundesgerichtshof – the Austrian Constitutional Court was completely separated from the ordinary court and not only judges, but university law professors and other lawyers were included as judges of this new body. Namely, the then Social Democratic parliamentary majority had not the slightest confidence in the conservative Austrian higher judiciary, and, in this way, the dominant politicians saw a separated Constitutional Court, which could be filled by socialist lawyers and friendly professors as more appropriate. This was all the more important because this new kind of constitutional adjudication was not inserted at the end of judicial lawsuits – as had happened originally in the United States – but legislative acts could be attacked before the Constitutional Court immediately after they had been promulgated. With this adaptation, constitutional adjudication came to the center of constant political rivalry between the government’s parliamentary majority and the opposition parties, and, in this way, it became the final political judge during the review of parliamentary acts.

The next milestone in the changes of the functions of the constitutional courts was the post-World War II reconstruction of the defeated Germany and Italy by the lawyers of the occupying American forces. In these countries new constitutions were created and the content of these constitutions was chiefly determined by American lawyers. (The transitions controlled by the United States could create such a constitution that was completely achieved by the lawyers of the U.S. occupation forces and it was only translated afterwards as, for example, in Japan after 1945.{3}) At home, in America constitutional adjudication was done by ordinary courts. However, just as in 1920 in Austria, the left-wing Social Democratic majority had an aversion against the conservative judiciary, so the occupying U.S. military leadership did not want to give the greater political power of constitutional adjudication to the judiciary socialized during the Hitler and Mussolini regimes. Thus, the separately organized constitutional court in Austria provided the pattern to the new constitutional adjudication in Germany and Italy. The Americans filled the constitutional court in Germany with reliable law professors (who sometimes came back with the occupying forces) and this gave a strong background support to the constitutional judges in the 1950s.{4} The Italian Constitutional Court was organized outside the hierarchy of the ordinary court too, but here it had only a limited identity. Until the end of the 1950s, the constitutional court could not begin its activity here because of internal struggles between political forces, while during this period the German Constitutional Court was able to build up its power over the activities of the German state. Later in the 1980s and 1990s, during the spread of constitutional adjudication over Europe, Africa and Asia, the Italian model did not exert significant influence and the German model had become primed for a takeover. This study will concentrate on the analysis of this model.

Direct control over legislative acts by the constitutional judges was left here – as was in Austria – but this model tried to partly tie constitutional adjudication to the higher courts. In Germany it was made possible to challenge the final judgment of the ordinary judicial litigation by constitutional complaint, and very soon it had the largest workload of the constitutional judiciary. On the other hand, in order to create a greater degree of unity of constitutional adjudication to the higher judiciary, it prescribed that a third of the constitutional judges were to be elected from among the members of the five supreme courts.

Retrospectively it can be said that only the German Constitutional Court could really unfold the Constitutional Court’s power potential, namely that this court is elected by political forces. A stable background support for this was secured by the U.S. occupying forces during the political struggle with a majority government. This support was most needed, as the extensive power of the constitutional judges for the annulment of the legislative acts had no precedent and the German constitutional judges have only further widened this power.{5} (In the US, the constitutional adjudication did not reach such a level of power by 1940; it was implemented there only in the 1960s.) Another power base for the German constitutional judges was given by those very abstract and almost normatively empty formulas and declarations, which were incorporated in the 1949 German Grundgesetz as basic constitutional rights. One such example was the “right for the expansion of all-round personality” and the other the “inviolability of human dignity.” The German Constitutional Court constructed these formulas as the general aspects of human essence, and they were used to create new fundamental constitutional rights that comprehensively transformed the original constitution.

There was an important modification during the later development, which the German constitutional judges started to apply parallel with the annulment of parliamentary acts. Originally, the separately organized constitutional court created directly for the control of the legislation had only a capacity of negative legislation (in other words: the annulment of the law), as the Founding Father of the Austrian model, Hans Kelsen wrote. But in the practice of the German Constitutional Court, this began to gradually change and in the reasoning parts of their decisions – parallel with the annulment – the constitutional judges began to provide dense regulations, recorded in detail, concerning the way the new law had to be created in order to be accepted by the constitutional judges as constitutional.{6} In this way, negative legislation began to slide toward becoming stronger positive legislation. Then the new constitutional courts, which were established in the 1980s and 1990s based on the German model, took over and expanded this change into more positive legislation.

Adopting the activist style of constitutional adjudication that had been developed by the German judges, the Spanish Constitutional Court has become another vanguard since the early 1980s. In fact, the Spanish constitutional judges even further intensified this activist style and, step-by-step, they began pushing aside the provisions of the Constitution, and used their old case law for the annulment of the new parliamentary acts instead. The frequent use of its own case law has always been characteristic of the Germans also, but in their decision-making the analysis of the text of the constitutional provisions also appears. (True, they are very often far away from this text and use such standards for the foundation of their decisions that are created by them from general constitutional declarations.) However, in the case of the Spanish Constitutional Court the provisions of the Constitution also happened to be pushed aside, and their decisions are solely based on their own case law instead. In this way, by enhancing the German initiative, the Spanish practice of decision making has established here the phenomenon of a pseudo-constitution, which is the dominance of the case law of the Constitutional Court, which pushes aside the written Constitution.

In the creation of a pseudo-constitution and in enhancing the other activist enterprises of the German constitutional judges, the Hungarian Constitutional Court has become another vanguard since the 1990s. After the collapse of communism in the 1990s, the idea of constitutional adjudication was not at all known in Hungary in the legal profession and in the political public sphere. This idea was propagated just as the supreme achievement of long-awaited political democracy was. The first constitutional judges chosen at random in 1990 did not even know what their role actually was and what role belonged to the new multi-party political system. In the chaotic political situation in Hungary, the circumstances allowed for the first freely elected parliamentary majority and its government to unfold constitutional adjudication with the greatest power. Indeed, a majority of the national-conservative parties could form a government, but beyond its governmental power the opposite parties of the left-wing and left-liberal parties enjoyed full media support, the resources of economic power and the university and the academic sectors also. In this situation, the vast resources of power behind the opposition virtually paralyzed the government for the first few months. There even occurred a taxi drivers’ blockade in the capital in November 1990, which aimed to overthrow the government.

The Hungarian Constitutional Court started to develop its decision-making style in these months and encouraged by its charismatic president, László Sólyom, it took over the most activist formulas from the example of the German one.{7} In addition, the Hungarian constitutional judges were not burdened by the huge workload of complaints against the decisions of the ordinary courts, which was the situation in Germany and in the other European countries. In Hungary – in line with the Austrian solution – constitutional adjudication was initially set up to directly control the legislation, and not the ordinary courts. In addition, this direct control – unlike that of the Austrians – could be initiated by everyone, and therefore the annulment of parliamentary acts by the constitutional judges took place almost daily in the early years. During the frequent annulment of parliamentary acts, it emerged that the basis of the decisions of the constitutional judges was not the written constitution, but an “invisible constitution” set up by the Constitutional Court’s own decisions. This decision-making style was used by the German and the Spanish constitutional judges earlier also, but they did not dare declare it openly. In a political situation where full media power, university and academic intellectual power, and the economic elite stood behind the opposition parties, the constitutional judges, with their “invisible constitution,” became heroes of democracy in the eyes of social groups that supported the opposition. In this political atmosphere they could cross out the constitutional provisions, and the more laws they destroyed, the more recognition was given to them by mass media and the representatives of academic intellectual power. With such tremendous backing – when the criticism against the Constitutional Court’s decisions was almost forbidden in public – the Hungarian Constitutional Court’s practice began to take over all the established forms of the competence expansion and the determination of the content of the future law.

These competence enhancements were then legalized by the new Constitutional Court Act of 2011, which was based on the new Hungarian Constitution. In this way, beyond the simple annulment of parliamentary acts, the following tools became available for the Constitutional Court in order to determine the content of future laws. 1) Beyond the possibility of full annulment, it can change the statutory provision under investigation to annul part of it and leave the rest untouched. In this way, this provision will basically have a different content in the future. 2) It is possible also that the constitutional judges leave all of the statutory provisions under investigation untouched, but a constitutional requirement will be appended to it by them, and thus the ordinary judges and the authorities will apply it in the future only in combination with this addition. 3) A third possibility is that they investigate a statutory provision involving a constitutional principle of law, a constitutional provision or a fundamental right and they will reach the conclusion that there is a constitutional omission which must be filled by legislation on the basis of their instructions. Supported by these possibilities, the Hungarian Constitutional Court has received a broad toolkit to determine the future positive laws beyond its power of negative legislation.

Summarizing the expansion of functions, it can be stated that the focus of the functions of the constitutional courts is the protection of the provisions of the constitution, which must always be realized in the midst of the struggles between the parliamentary majority and the parties of opposition, and eventually between the government and the head of state. Beyond binding the new parliamentary acts to the provisions of the constitution, the main purpose of the functions is to ensure the peaceful change of government after the fall of the ruling party in a parliamentary election or also in case of the government’s ouster in Parliament. These functions include the review of electoral litigation and the review of the creation of parliamentary acts. The latter can take place before the promulgation of law (prior review), or subsequently after publication. Posterior review can take place in an abstract way, when the deputies – a group of MPs (for example, fifty or a quarter of all MPs, etc.) may challenge the new law, or, in federal-type states, the governments of the Member States or legislation can challenge the federal law, and vice versa, Member States’ laws can be challenged by federal government bodies. In some countries, however, this is broader, and this posterior review is possible for everyone. For example, in Hungary, the 1990 regime until 2012 made this actio popularis possible and anyone – even non-Hungarian citizens – could challenge any applicable laws and regulations before the Constitutional Court with resorting to a constitutional complaint immediately after the publication of these said laws and regulations and demand their annulment.

In addition to these main functions – if they already exist – the constitutional courts also have such functions by which they can decide over the abuse of power committed by the head of state or by the Prime Minister during the procedure that was started by the parliamentary majority or otherwise. To furnish some examples, it was in this way that the constitutional judges deprived the President of Lithuania – Rolanda Paksas – of his office in 2004. The Prime Minister of Thailand was also thus removed from office twice after the millennium. Although this has not occurred yet, the Hungarian Constitutional Court has this jurisdiction also and, started by the proposal of two-third of the MPs, it can remove the head of state from office if an intentional violation of the Constitution or of the law is established.{8}

During the analysis of constitutional functions, a special analysis must focus on a function that was not included in the original U.S. version of constitutional adjudication, but it emerged in several constitutional courts in Europe after the Second World War.

2. The Control by the Constitutional Court based on international law

Constitutional adjudication migrated from America to Europe after the Second World War and received an additional function in respect to international law, which did not exist at its original site. The German Constitution of 1949 was created under the close control of lawyers with the occupying U.S. troops, and because of the division of Germany and permanent occupation was the aim, some provisions were also included in the German Basic Law to prevent the buildup of a new totalitarian regime by general elections, as had taken place in 1932.{9} In this way, the direct subordination of German law to international law by German Basic Law was another tool for control of the German State. This control was given to the Constitutional Court: “The general rules of international law are part of federal law. They take precedence over laws and directly establish rights and obligations for the inhabitants of federal territory.” (Article 29). Then, the precedence of international law over German law is specified by Article 100 (2) in such a way that if doubt arises in a situation whether an international law is part of the federal law, then in this case the Constitutional court decides. In the past sixty years, German Constitutional judges have exercised this competence only modestly,{10} but in any case, this example has urged some European constitutional courts that were established later to incorporate this new function among the competences of constitutional adjudication. In this way, national laws are controlled by these constitutional courts not only on the basis of Constitutional law, but on the basis of international law also. With this doubling and intertwining, constitutional law and international law started to converge in some way, although it is always determined by the attitude of the majority of the constitutional judges in a country what degree of the “international court” in addition to the constitutional court they want to realize.

However, with the possibility of this intertwining, some new developments emerged which give new features to constitutional adjudication. One of these developments – with strong support globally – is the constitutionalization of international law, which is utilized by several legal expert groups. These groups of lawyers mentally grasp the international law originally created by contracts of sovereign nation-states as the global constitution, and they try to use it to achieve the subordination of nation-states and their national constitutions.{11} Prima facie is only a theoretical development, but if we look at the development of the more comprehensive global world order in recent decades, it fits in very well with these. Namely, since the early 1970s and then from the 1980s onwards, new monetary capitalism began to be built in place of old, nation-state capitalism based on Keynesianism. Stage by stage the boundaries of the nation-states of individual countries started to be removed in order to integrate them into the new global monetary-capitalism.{12} After the disintegration of the Soviet Empire, Central and Eastern European countries have entered this global monetary-capitalist organization from the 1990s onward. The increasing European integration – similar to endeavors of other regions of the world – received incentives and knowledge from these global monetary organizations in order to control diverging nation-states. From 1995 onwards, the IMF, the World Bank and especially the WTO were able to stabilize this new world. New forums about nation-states were created by international treaties in order to penalize them if their obligations were not met. Actually, it was only from 2008 onwards, when the great banking crisis erupted and the whole financial market system, based on global banking families, proved to be fundamentally inadequate to maintain world capitalism, that this whole global structure was shaken. Parallel with the effects of the demographic crisis of Central and Eastern European countries enhanced by the migratory movements of their peoples to Western Europe, these phenomena made the political forces of nation-states stronger against the European Union and also confronted global mechanisms over nations. The new tendencies, however, are still at an initial stage of recent developments, and, in this way, on an intellectual level they could still not urge strong reversing trends against the global monetary world. In intellectual sectors, the forces of globalization still remain dominant.

Against this structural background it is possible to explain the intellectual developments that created the theory of the constitutionalization of international law in the intertwining circles of international lawyers and constitutional lawyers in the mid-1990s. Austrian lawyer Alexander Somek criticizes this effort as follows. In the years after the turn of the millennium, the plan of the European constitution and the United States of Europe completely failed in political terms, and, in addition to this, because the increasing growth of Euroskepticism does not allow any return to this, law professors consequently followed in the footsteps of politicians, and by redefining legal concepts, they try to create a desired social reality. Their motto is: if the new world order can no longer be created by political means, you can imagine that the desired change has already happened. They make it look as if the changes have already become a reality.{13}

The constitutional courts equipped with this function will also become international law courts controlling domestic law, and this results in their trying to control the constitutional power of their own countries by relying on international “constitutional” law. Because not enough comparative data is available, in order to reveal reality, I try to show contrasting situations in the countries according to the text of their respective constitutions.

The constitutional courts in Romania and Croatia do not have the “international court” –character on the basis of their constitutions, and the constitutional judges in both countries control domestic law only on the basis of their national constitutions. Turning to those where there is a double character of the constitutional court, the discussion will move from weak to strong in this respect. In this way, one must start with the Czech constitution, which includes the double-checking basis of constitutional judges over domestic law only in a limited form. By the Article 87 (1) i) provision of the Constitution, Czech constitutional judges can control domestic law not on the basis of abstract international treaties, but only such laws can be annulled by which the implementation of certain international courts’ judgment is prevented.{14}

In contrast, the Slovak Constitution contains the possibility of controlling domestic law on the basis of international law, and beyond the provisions of the Slovak Constitution, constitutional judges can always annul a domestic law on this basis, just like in Germany. Differently from the German solution, however, the Slovak Constitutional Court can control domestic law on the basis of such a part of the international law that has been created expressly with international conventions to which Slovakia joined, and not on the basis of the “generally accepted rules of international law”, that could be widened freely by constitutional judges.{15} On the other hand, however, the control of domestic law on the basis of international law provides for another possibility, because the constitutional complaint of the citizens will be judged by the constitutional judges under the human rights treaty, and not on the basis of the Slovak Constitution. (Just like in the case of the Court in Strasbourg.) With this solution, the subordination of domestic law to the European Convention on Human Rights has been duplicated. In addition to this, not only can constitutional judges annul the domestic legal provision, by which a human right under international conventions is violated, but they can also declare that something has been omitted, set a time period and prescribe mandatory legislation for the elimination of the omission.{16}

As in Slovakia, the Polish constitution also contains the control of domestic law on the basis of international law. It is important to emphasize that here this control can be based only on international agreements, which were signed by Polish governmental agencies and were ratified, and also, that the “general rules” of international law (so-called ius cogens) cannot be used by constitutional judges to control domestic law.{17} But the subordination of domestic law under international law is intensified in such a way that the judges of the ordinary courts may ask during judicial procedures for the examination of legal provisions that are currently being applied not only on the basis of the Slovak Constitution, but also on the basis of international law.{18} Compared to the above, the control of domestic law by the Slovenian Constitution is more widely possible on the basis of international law, because here the German sample as a whole was adapted, and this control is allowed not only under international treaties signed by the Slovenian state bodies and ratified, but can be based on the general rules of international law as well.{19}

The Hungarian Constitution contains the possibility of the control of domestic law as widely as it was visible in the German and Slovenian samples. Sometimes, on this double control basis, such a majority of constitutional judges was formed in Hungary that it tried to control constitutional power also and on the basis of the general rules of international law (ius cogens), these constitutional judges also recognized the possibility that they could annul constitutional amendments. Paragraph (3) of article Q) of the Hungarian Constitution contains the possibility of control of domestic law on the basis of international law, according to which the Constitutional Court – in addition to the fundamental constitutional rights – can check the national legislation: “Hungary accepts the generally recognized principles of international law. Other sources of international law become parts of domestic law after promulgation.” There is no problem with international law being promulgated and this cannot create a formal restriction of state sovereignty, because earlier this was explicitly accepted by the Hungarian State. However, some problems may be caused by the ius cogens over domestic law because with certain interpretations, it makes it possible for constitutional judges to extend their control to the Constituent power itself. In this way, a possible new constitution or amendments to the Constitution can be declared by constitutional judges as contrary to the rules of the ius cogens and they can be destroyed. This position was occupied in 2010 by the then majority of the Hungarian Constitutional Court, and they declared in the decision 61/2011 (VII.13) AB that they would grasp the ius cogens rules of international law not only over the entire legal system, but over the Constituent power also. With this interpretation they declared that the future amendments to the Constitution would be controlled by constitutional judges. The exact text reads like this: “The norms and the principles of the ius cogens of international law can serve as a benchmark for monitoring (…) the norms and principles of the ius cogens and their core values together constitute a standard to which the entire Constitution and its amendments in the future will have to comply.” (Part V. 2.2. of the reason). This interpretation was usually rejected from 2011 onwards by the majority of the extended Constitutional Court – after fierce internal debates –, but in the decision 12/2013 (V. 24) AB it was confirmed again.{20} Against this expanded interpretation, in my opinion, the sovereignty-friendly interpretation of article Q) of the Hungarian Constitution can only be that the rules of the ius cogens of international law are merely the framework for the international contracting authority of the Hungarian state, and they are not aimed at subjecting constitutional power to the constitutional judges.

3. The structural distortions of the functional activities

In the field of the control of domestic law based on international law, we have already seen one possible distortion, but if we take a closer look at the functioning of the constitutional courts, we can discover more distortions. Most of these can be perceived in the multi-directional extension of their powers, but there are distortions caused by the fact that due to structural reasons, most of the decisions are not made by constitutional judges themselves, but the determination of content of these decisions has been delegated to the various apparatuses of the constitutional court. Let us look more closely at these distortions.

Before analyzing the distortions arising from the arbitrary expansion of powers by constitutional judges, it is worth highlighting that control over the constitutional courts could only be established with difficulty, given that this institution is directly related to the foundation document of constitutional power, and, in this way, it is above all state organs. There is no state power body that could take charge of it. This structural situation then inevitably leads to irrefutable constitutional judges beginning to interpret comprehensive and normative empty constitutional rules more and more broadly. Or, making use of an alternative method, it can read out new fundamental rights from the comprehensive and normative empty declarations of the constitution, and, in this way, a new constitution will be created by the constitutional judges, step by step. One way to do that – as could be found mainly in the Lithuanian Constitutional Court decisions of analysis – is that the decisions are based on the comprehensive formula of the rule of state, even though there were also specific provisions in the constitution to decide disputes. In this way, only the formula of the rule of state remains from the original constitution and the other parts of it will be neglected. With this method, finally, a new constitution is built up incrementally by expanding newer and newer aspects of the formula of the rule of state.{21} The first majority of the Hungarian Constitutional Court used this method in the 1990s also, but additionally they took over from the German constitutional judges the formula of the inviolability of human dignity. Then, building on both formulas, this majority declared quite openly the creation of the “invisible constitution,” and it was stated that in the future more and more new constitutional provisions would be drawn from this.

To understand the consequences of the unquestionability of the decisions of the constitutional court, it is important to highlight that in the pluralistic democracies based on the continuous struggles of political forces, the annulments of the parliamentary acts by the constitutional judges negatively affect the government party before any other. Thus, the positions of opposition parties are always reinforced by these decisions, even if these decisions happen to be contradictory to the provisions of the constitution. In this way, especially if the majority of media and the dominant intellectual circles stand on the side of the opposition parties, the Constitutional Court should not be afraid of any criticism, even though the constitution has been ignored and its decision is made against it. Conversely, if these media and intellectual power resources are largely behind the opposition, the constitutional judges will refrain from making activist decisions when formal sanctions cannot reach them due to their unquestionability.

This unquestionability can be overridden in exceptional cases, if there is such a great parliamentary majority in a legislative cycle that it is able to create a constitutional amendment, and, in this way, the annulments of the constitutional judges can be overruled by the government parties. Or, if there is not enough of a majority to make a constitutional amendment, but the majority has enough power for at least the amendment of the Constitutional Court Act.{22} However, given the fragmentation among political forces in most European democracies, such a possibility of resistance against the constitutional judges comes to fruition very rarely.

The Constitutional Court thus forms a powerful body, but if we move closer to monitor their operations, it soon turns out that the constitutional judges did not actually design the decisions by themselves, but they have been made by the various apparatus of the Constitutional Court in most cases. Let us look at the causes and consequences.

1) The most important reason of this can be seen in the generalist nature of constitutional adjudication, which runs counter to the European system of specialized courts that have been developed since the early 1800s. In the United States the generalist courts remained, and the upper courts and Supreme Courts decide the cases taken from each branch of the entire legal system, and the judges are not specialized in civil law, criminal and other cases. If there is such a specialized court (e.g., patent cases) in a sector, which is an exceptional case, the judges of the Supreme Court with a generalist judging competence make the decisions in the case of the appeal, too. Constitutional adjudication was established for the first time in the United States in the early 1800s, and then it went to Europe in the first decades of the 1900s and now in most European countries there is an existing institution. The European specialized court system has a specialized and differentiated judiciary – and, last but not least, also the legal community that is differentiated sector by sector – and is coupled with fundamentally different components to constitutional adjudication, as it was on the original site. Of course, the constitutional judges also come with a narrow competence, and after becoming a member of the constitutional court, they should be able to decide everything that can be found in the full spectrum of the law. Due to the specialization of a narrow area, European constitutional judges are faced with bigger problems than their colleagues in the United States.{23} The justices of the Federal Supreme Court in the United States, who are provided primarily with the function of constitutional adjudication, have for years been performing the function of generalist judging at a lower level – typically parallel with law professor activities – and thus the subsequent role of the generalist constitutional judge is not a challenge for them. After all, they must continue to deal with criminal, civil, property law, administrative law, etc. issues, as they have always done.

2) In the case of European constitutional judges, this competence problem is mounted by the fact that they remain in their position for only a relatively short time. In contrast to their American counterparts, who are appointed for life, European constitutional judges are usually chosen for a short time (9-12 years), and this is with an upper age limit, usually 65-70 years. In this way, European judges often spend only six to eight years at the post, as opposed to their American counterparts’ usual term of 30-40 years. One consequence of this is that the composition of the European constitutional courts changes frequently, and there are always two or three new judges, who are only just getting started with decision-making work, while another sector has already begun to prepare for their exit due to the age limit. Compared to their American counterparts, European constitutional judges have decision-making activities with a much more transient nature, and this intensifies the competency problem arising from generalist judging and creates a discouraging effect in respect to the rethinking of existing case law, which does not appear in the case of justices in the U.S. Supreme Court. In the first years after their election, European constitutional judges may attempt to master many thousands of pages of existing case law, but on the grounds of constitutional values there are only a few exceptions who undertake to reinterpret this law. Thus, the competence problem merging with the impact of the temporary position results in the following: case law established by predecessors appears as a pseudo-constitution which is impossible to throw away.

3) In addition to these two, the role of the law clerks of European constitutional judges should be emphasized, which is fundamentally different from the role of their American counterparts. The possibility of a judges’ own law clerks evolved since the early 1990s in the U.S. Supreme Court in order to assist with decision-making work, and typically there are three law clerks for federal appeals judges and four in the case of the justices of the Supreme Court. These American judicial assistants are selected by the justices and judges from among the student bodies of the best law schools and they will receive a one-year mandate, even if in some cases this mandate will be repeated. Through these conditions, the law student-law clerks are clearly subordinated to their justices, who have many years of judicial experience.{24} The situation is radically different in the case of the relation between European constitutional judges and their staff. Since the German model was copied by most European constitutional courts, we should start with the presentation of this. This model has broken with the American “freshman” scheme, and the staff of the judges are selected from among young, ordinary judges with some years of experience. The other change was that they not only work as law clerks for a year, but they remain for a long time at these posts.{25} With these changes, the relation of constitutional judges and their law clerks is substantially transformed compared to the American one, and the decision competence of the law clerks reaches that of the constitutional judges. It is not possible to know exactly what the proportion is of those German constitutional judges who have passed on to their staff a large part of their decisions on merit as well, but through the empirical research on this topic, this is presented as a serious problem. Uwe Kranenpohl wrote, after having interviewed German constitutional judges, “Dabei signalisiert der leicht kritische Unterton dieses Gesprächspartner, dass einige Kollegen bei ihm durchaus im Verdacht stehen, ihren Mitarbeitern unangemessen umfangreiche autonome Gestaltungsbereiche einzuräumen. Noch deutlicher bringen dies zwei andere Interviewpartner durch Flucht in Sarkasmus zum Ausdruck: Das hängt eben sehr vom einzelnen Richter ab. Ich glaube, ich kann für mein Dezernat sagen, dass da kein ‘Entzug des gesetzlichen Richters’ stattgefunden hat - aber ich kann das nicht allgemein behaupten. (Interview No. 6.) ‘So gibt in der Tat Verfassungsrichter, da muss man davon ausgehen, die unterschreiben jeden Mist, der Ihnen von den Wissenschaftlichen Mitarbeitern vorgelegt wird und kontrollieren das nicht!’” (Interview No. 21).{26}

As a further shift of this German model, it can be seen in the case of other European constitutional courts that law clerks will not be replaced on the expiry of the term of their constitutional judge, but they stay and continue to work alongside the inexperienced newcomer-judge. In fact, of course, the newcomers facing elementary competence problems are under tutelage of the experienced law clerks the first time, and the new judges are guided and educated in the decision-making work by them. In this situation, it becomes the generality, which was ironically mentioned earlier in the interview by the German constitutional judge, and the cases will be distracted from “the lawful judge” by the law clerks. This image is only amended in exceptional cases, when the new constitutional judge has a particular sovereign personality and, in this way, he will be able to free himself from the guardianship after a while. In addition to the sovereign personality, of course, it can be mentioned that there must be enough time for the newcomer-judges to be able to become competent constitutional judges, and not to leave this post after five or six years due to reaching the upper age limit. But this exceptional competence can be achieved by the newcomer-judge who could earlier see through wide fields of law based on previous praxis, and was not only specialized in a narrow area of legal expertise. But even if all this is available as well, such “deviant” constitutional judge must always be confronted with colleagues and their law clerks who deal with the cases on the ground of the pseudo-constitution as the cannon of their work.{27}

4) The fourth reason that causes the formation of the pseudo-Constitution rather than simple case law is the huge workload of the European constitutional courts. As previously mentioned, there is a marked difference between the workload of the U.S. Supreme Court and the European constitutional courts. While the justices of the Supreme Court must decide only one hundred cases per year, the European constitutional judges have to deal with thousands of cases every year. In this way, the busy European constitutional judges are not only unable to write a lot of concurring and dissenting opinions, but they are also unable to override once established, earlier case law in light of constitutional values and on the basis of the original text of the Constitution itself. This problem was already indicated by Richard Posner: “The heavier a court’s caseload, the less likely it is to reexamine.”{28}

4. Summary and Outlook

The rule of state based on democracy is changed profoundly by the constitutional courts with their expanding competences. In addition, the judicial activity of the ordinary courts removed from statutory provisions and based on abstract declarations of constitution makes the idea of democracy emptier and emptier.{29} In such circumstances, the reality of the functioning of state power can be expressed by the conceptual construction of the juristocratic state, in which the dominant power comes from the majority of the legislature and from the executive sphere to the supreme courts and the constitutional court placed above them. By the expanding competences of the constitutional courts – which are further expanded by the uncontrollable constitutional judges also – not only the determination of the laws will be transposed from the legislature to the constitutional judges, but also the constitutional power itself is transferred to them as a consequence of the creation of their pseudo-constitution. (Even though this is often practiced not by the constitutional judges themselves, but rather by their permanent apparatus, the law clerks, in their name.) By the interpretive tricks of the higher judiciary, such as removing texts of statutory acts, this rise of the juristocratic state is only complemented and completed.

The emergence of the dominant position of the constitutional courts necessitates a conceptual framework in which the typology of the forms of government themselves are enlarged. Beyond parliamentarism, presidentialism and semi-presidentialism, the juristrocratic form of government must be conceptualized.{30} In addition, by the shifting of the dominance of power towards the higher courts and the constitutional court above them, new forms of political struggles were created as a consequence, and the political struggle of litigation in the courtroom has emerged. This has taken place most clearly in the United States since the early 1960s, and this has since been celebrated by its adherents as the rights revolution. As the advocates of the “cause of lawyering,” the movement of lawyers to attempt to fight the decisions of the courts based on constitutional rights and freedoms, cannot be achieved by the political struggles in Congress and in the Member State Legislatures. As a consequence of this new political form, the selections of the new judges to the higher courts – especially to the federal Supreme Court – takes place in the wake of political struggles, which is similar to the presidential election. Furthermore, the judges and justices elected by the successive Democratic and Republican presidential administration face each other in the decision-making processes as internal “judiciary parties.” In Europe and in other countries around the world, the same thing takes place with respect to the election of constitutional judges, even though the role of the movement of lawyers in litigation and politics has not reached the same degree here as could be seen in the United States in the 1960s and 1970s.

Likewise, in theory, it also begins to transform what gives legitimacy to judicial decisions. While the legitimacy of a judicial decision in a democracy is given by the high degree of conformity to the law – which was created by a parliamentary majority based on the votes of millions of citizens – in the juristocratic state, this legitimacy starts to move to the judicial decision itself. The judicial decision is no longer legitimized by the election of a parliamentary majority by millions of citizens, but only if it is consistent with certain legal principles. These principles are developed by the moral philosophers of the critical intelligentsia, and then carried over to the judicial sphere by their friendly law professors. As a result, the idea of the democratic rule of law is less and less suitable for describing this kind of reality, and instead it is more appropriate to use the term “juristocratic state.” There is, of course, another possibility in this situation where, insisting on the idea of democratic rule of state, can be a fight for changing the established reality and for restoring the former state. But it would be the role of a political movement, and a scholar can only describe the state of reality.

{1} See Jellinek 1885, 57.

{2} See Jellinek 1885, supra notes 10–52.

{3} As Noah Feldman wrote, the forced nature of the Japanese Constitution by the American became known to the Japanese public’s attention only after ten years, and then a committee was established for screening and possible revision of the provisions of the constitution. But in the end, they kept everything from it. Today this would not be possible – Feldman adds – because of indispensable internal legitimacy of constitutions: “Less than a decade after the adoption of the Japanese Constitution, the document’s imposed foreign origins became public knowledge in Japan. A commission was formed to consider redrafting – and despite the recommendations for changes, the existing constitution was preserved in its entirety. Half a century later, one cannot imagine this sort of acquiescence being reproduced in most places in the world. Today a new constitution must be understood as locally produced to acquire legitimacy.” Feldman 2005, 859.

{4} A lot of information concerning the radical elite change towards transatlantic spirit after the Second World War is provided by the excellent book of Stefan Scheil 2012; regarding the Constitutional Court see, in particular 155–159.

{5} The role taking of the German Constitutional Court was decisively determined in the first years between 1951 and 1971. Gerhard Leibholz returned from the exile in 1946. In his so-called Status-Denkanschrift (memorandum) he outlined the privileged position of the Constitutional Court against the government and the parliamentary majority government in 1952. Under his leadership, the German constitutional judges began a bitter struggle against the Adenauer government in order to enforce their primacy over each state body. For details see Collins 2018, 228–258.

{6} The most obvious example of such a decision-making style of the Spanish constitutional judges was their decision in 2012, in which they decided over the Civil Code provision permitting same-sex marriage. The Spanish Constitution literally states that marriage is a legal tie between a man and a woman, but this provision was recognized as consistent with the constitution by the Spanish constitutional judges. The relevant provision of the Spanish Constitution in English translation reads: “Art 32.1. A man and a woman will be entitled to marry in terms of full legal equality.” This is interpreted by the constitutional judges as follows: “Otherwise, if strictly and literally interpreted, Article 32 CE only identifies the holders of the right to marry, not the other spouse, although, we must insist, systematically speaking it is clear this does not mean that there was a wish in 1978 to extend the exercise of this right to homosexual unions.” STC No. 198/2012, 5. However, despite the declared admission of the opposition of their decision to the constitution, they declared the same-sex civil marriage as consistent to the constitution.

{7} Kim Lane Scheppele – based on her positive assessment – compares the charismatic presidential role of László Sólyom to the role taking of the president of the Russian Constitutional Court, Valery Zorkin, and she considers them the most prominent personalities of constitutional courts in the post-Soviet times. See Scheppele 2006, 1757–1851.

{8} See Article 13 of the Hungarian Constitution, and its detailed rules in the Constitutional Court Act, section 35.; the same rules were contained by the provisions 31/A and 32. of the old Constitution.

{9} During the constitution making determined by the Americans, Hermann-Josef Rupieper emphasized three main targets: “1949 hatten sich drei Strategien heraus kristallisiert, um zu verhindern, dass die Deutschen jemals wieder zu einer Gefahr für die ‘demokratischen Welt’ werden konnten: Sie sollten ‘zum überzeugten Glauben an die Demokratie’ gebracht werden, sie mussten durch ‘Kontrolle und Überwachung’ in Schach gehalten werden, und sie waren durch Europäische Integration in breitere Beziehungen einzubetten. Alle Elemente dieser Politik existierten weiterhin parallel zueinander.” Hermann-Josef Rupieper 2005, 41–56.

{10} “Some post-World War II national constitutions incorporate international law – or some parts of international law – as superior to statutes. So, for example, in Germany, The Basic Law provides that ‘the general rules of public international law … take precedence over statutes and directly create rights and duties for individuals’, although in practice this provision is given somewhat restrictive meaning.” Jackson 2007, 164.

{11} For a summary analysis of this effort, see Schwöbel 2012, 2–22.

{12} For the summary analysis of this process, see van der Pijl 2006.

{13} “Since nobody appears to believe any longer in the change of the world order by political means, scholarship is increasingly taking comfort from the academic equivalent of practical change, namely the re-description of social realities of social. If the world cannot be changed, you imagine it changed and pretend the work of your imagination to amount to the real. (…) The most ludicrous form of the re-description is the application of constitutional vocabulary to international law.” Somek 2010, 286

{14} See “The Constitutional Court shall rule on … (…) i) measures essential for the implementation of a ruling by an international court, which is binding for the Czech Republic, unless it be implemented in a manner.”

{15} Article 185. 1. “The Constitutional Court shall decide on the conformity of the laws with the Constitution, constitutional laws and international treaties to which the National Council of the Slovak Republic expressed its assent and which were ratified and promulgated in the manner laid down by law; b) government regulations, generally binding legal regulations of Ministries and other central state administration bodies with the Constitution, with constitutional laws and with international treaties to which the National Council of the Slovak Republic has expressed its assent and which were ratified and promulgated in the manner laid down by laws.” (The Constitution of Slovak Republic)

{16} Article 127 “(1) The Constitutional Court shall decide on complaints of natural persons or legal persons if they are pleading the infringement of their fundamental rights or freedoms, or human rights or fundamental freedoms resulting from the international treaty which has been ratified by the Slovak Republic and promulgated in the manner laid down by law, save another court shall decide on the protection of these rights and freedoms. (2) (…) If the infringement of rights and freedoms according to the paragraph 1 emerges from inactivity, the Constitutional Court may order the one who has infringed these rights or freedoms to act in the matter.” (The Constitution of Slovak Republic)

{17} Article 91 (…) “2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes. 3. If an agreement ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws. (…) Article 188. The Constitutional Tribunal shall adjudicate regarding the following matters: (…) 2. the conformity of a statute to ratified international agreements whose ratification required prior consent granted by statute.” (The Constitution of the Republic of Poland of 2 April 1997)

{18} Article 193. “Any court may refer a question to the Constitutional Tribunal as to the conformity of a normative act to the Constitution, ratified international agreements or statute, if the answer to such question will determine an issue currently before such court.” (The Constitution of the Republic of Poland of 2 April 1997)

{19} Article 160. “The Constitutional Court decides on the conformity of laws with the Constitution; on the conformity of laws and other regulations with ratified treaties and with the general principles of the international law.” (The Constitution of the Republic of Slovenia)

{20} As a literature backing it can be summoned the analysis of the two studies written by John McGinnis and Ilya Somin. In this analysis, they see the international interweaving of strong political elites failed in the domestic political system but strong on a global scale as the driving forces behind the constitutionalization of international law. These forces are politically weak at home and that’s the reason why instead of democracy they tend to trust the international judicial oligarchies: “A final explanation for the rise of raw international law may be its attractiveness to groups that are dissatisfied with the outcomes of the domestic political process. Political scientist Ran Hirschl has suggested that social and political elites have reacted to the rise of democracy in the modern world by constructing more powerful and wide-ranging roles for the judiciary over which they retain substantial influence.” McGinnis–Somin 2007, 1185; and their second study by which the expansive jurisdiction based on human rights is criticized: McGinnis–Somin 2009, 1739–1798.

{21} As the critique of this development the concept of “total rule of law” was introduced by the Hungarian constitutional judge, Varga Zs. 2015, especially 25–32.

{22} This was the situation in Poland in 2015, and after the use of this opportunity, a power struggle broke out between the constitutional judges and the new parliamentary majority.

{23} There are some institutional problems arising from the coexistence of the generalist constitutional adjudication and the specialist European judicial system, and for the analysis of these problems please see my earlier study: Generalist judges in the specialized judicial system: A dilemma of the European constitutional judges. (Pokol 2014, 226–243.)

{24} The lesser decision-making competence of the law clerks does not prevent that they are included in the preparatory work of the drafts: “But what one expects (…) if most judicial opinions are written largely by law clerks (as they are), who are inveterate legalists because they lack the experience, confidence or ‘voice’ to write a legislative opinion of the kind that judges like Holmes, Carodozo, Hand, Jackson, Traynor, or Friendly wrote. The delegation of judicial opinions writing to law clerks may explain the decline in the number of judges whom anyone would be inclined to call ‘great.’” Posner 2011, 583.

{25} Earlier, five- or six-years’ time could be spent at the post of the staff of the German Constitutional Court, but lately it is usually only two or three years. (See Kranenpohl 2010, 106–108.)

{26} See Kranenpohl 2010, 88.

{27} What kind of charges will attract the newcomer constitutional judge, who tries to stick with the original constitution, and only secondarily follows the pseudo-constitution hardened case law, can be seen in the book of Kranenpohl: “Gerade das BverfG hat eine starke Neigung, im Sinne der Wahrung von Rechtssicherheit die bisherige Rechtsprechung weitgehend beizubehalten. (…) Schon durch den bloßen Umfang der bisherigen Rechtsprechung sind damit bereits weite verfassungsrechtlich relevante Bereiche vorstrukturiert, was dem Berichterstatter im Regelfall lediglich erlaubt, sich mit seinem Vorschlag innerhalb der bereits formulierten Prinzipien zu bewegen.” (Kranenpohl 2010, 143.)

{28} Epstein–Landes–Posner, at 117.

{29} In this process, the dominant position of the objective-theological interpretation of law is a key aspect by which the judges will be removed from the binding to the law. For the analysis of the achievement of this dominant position, see Rüthers 2014, especially 89–94.

{30} For a more detailed analysis see my previous work: Pokol 2017a, 61–79.