1. Three Questions about Judicial Formalism

In both practitioners’ comments and the academic literature on Central and Eastern European (CEE) legal cultures, there has been a general understanding and much lament about the persistence of certain features of legal thinking of the socialist era. In particular, the judicial style in CEE is often critically characterized as formalistic, magisterial, terse and deductive (Fogelklou Reference Fogelklou2002, Kühn Reference Kühn2011). Post-communist CEE legal thinking is sometimes called ‘the last bastion’ of formalism (Kühn Reference Kühn and Melkevik2012, 224).

Formalism is a catch-all term referring to a wide range of features of modern law and legal theorizing (Schauer Reference Schauer1988; Weinrib Reference Weinrib1988; Pildes Reference Pildes1999; Troop Reference Troop2018). These features manifest themselves as continuous variables; for any systematic analysis, these need to be disaggregated and operationalized at a lower level of abstraction (Alberstein Reference Alberstein2012, 161–162). Even if we focus on formalism in adjudication, the conceptualization is somewhat complicated. The term is both protean and often used critically: ‘formalism exists largely in the eyes of its opposers and there are almost as many “formalisms” as views about legal reasoning to oppose’ (Postema Reference Postema2011, 384). Some authors use related terms such as ‘mechanical jurisprudence’, ‘textualism’ or ‘hyperpositivism’ to express this criticism of a certain style of adjudication. Whether we start with a broad understanding of formalism or specify it more narrowly, the term refers to aspects of judicial reasoning or judicial style that can be observed in most modern legal systems. For the purposes of this article, it is sufficient to roughly characterize formalism in adjudication in the following way: judges see their role as applying rather than creating the law; in their reasoning, they tend to refer to authoritative ‘positive’ sources rather than a broader range of normative principles, and in interpreting these sources judges tend to focus on the literal or ordinary meaning of legal texts rather than more creative techniques and modes of reasoning.

The formalistic style of CEE adjudication has been widely and controversially discussed in the academic literature and in policy debates about institutional reforms (Kühn Reference Kühn2011; Mańko Reference Mańko2013a). There are at least three questions at stake in this discussion: (1) the historical origin or causes of this supposed formalism in CEE; (2) the evaluation of judicial formalism in terms of political and moral principles and values; and finally (3) the question of whether and in what sense formalism can be seen as a distinctive feature of CEE judicial style, in particular as a heritage of the socialist era.

The first question concerns, roughly speaking, the causal link between certain explanatory variables and the observed/perceived/supposed style of CEE judicial reasoning in the present. As with any historical inquiry, the set of potentially relevant causes, conditions, prerequisites is virtually endless and any explanatory attempt faces methodological problems usual in historical analysis. As for the causes of formalism in CEE, most of the literature focuses on a limited set of explanatory variables, such as institutional history, political events, political and legal ideas and ideologies, legal education, the de facto and ideological role of the judiciary, and analyses relatively recent periods of the pre-1990 history of the region: the Habsburg monarchy, the interwar period, and various stages of the socialist era.

The second issue is clearly normative and reveals serious disagreements among observers and, as we shall see, the views sometimes tend towards extremes. The evaluation of the perceived formalism of CEE judiciary is ambivalent depending on one’s general jurisprudential views or theory of adjudication. Is formalism good or bad? When the question is put as bluntly as this, there is little scope for meaningful discussion. Yet, in actual debates the evaluation of this perceived formalism of CEE judiciary easily gets polarized in simplified terms while explicit normative debates about adjudication are avoided. If there is any single answer to the question about the desirable degree of formalism, it lies between the extreme positions. Upon reflection, reasonable judges and commentators also acknowledge this.

In contrast, the third issue seems to have escaped serious explicit analysis. Once scholars start analysing formalism as a persistent feature (malaise or virtue) of CEE judiciary, inherited from socialist times, they often lose other eras and jurisdictions from sight and tend to disconnect the debate from discourses on adjudication beyond the region. The distinctiveness-of-formalism has been unquestioned or at least an unexamined assumption.

Although these three questions are distinct, in debates about CEE judiciary they are not always clearly distinguished. In fact, they are interwoven in a complex fashion. In particular, answers to the first (historical) question about the origins of formalism are linked to variables which are themselves associated with strong positive or negative value judgements. These judgements are in turn often made in light of the discussants’ more or less informed ideas on the nature of adjudication or their further normative commitments and practical standpoints, especially those concerning the relations of nation states and the European Union. In fact, seemingly technical debates about adjudication and legal reasoning are embedded in narratives about backwardness and catching up, nationalism and cosmopolitanism, and other broadly political and ideological discourses characteristic for modern intellectual life in the region.

In an earlier article (Cserne Reference Cserne and Bobek2015), I argued that we should reject the thesis that formalism is a distinctive feature of CEE. In particular, I advanced a conceptual, a methodological, and an empirical claim. Looking at the terminology and the conceptual foundations of the jurisprudential discourse on formalism, I distinguished several dimensions of formalism. Methodologically, I suggested that a moderate functionalist analysis and reliance on social scientific or, more broadly, empirical research, is a fruitful way to grasp formalism as a feature of judicial style (Cserne Reference Cserne2019). The empirical claim was that if we follow the above methodology, we are unlikely to find sufficient evidence for characterizing CEE judicial reasoning as distinctively formalistic.

Obviously, I am not denying the impact of the four decades of existing socialism on judicial attitudes in CEE. Even if, by now, 30 years after the regime change, the age composition of the judicial personnel is radically different (if nothing else, for purely demographic reasons), it would be ludicrous to deny continuity in judicial attitudes, thinking, style, etc., at various levels and in various forms. In fact, one would expect long-term effects of the pre-1989 past to be ubiquitous. Yet the precise nature and extent of these effects is difficult to ascertain.

The few empirical writings on this alleged formalism suffer from conceptual and/or methodological difficulties (Matczak et al. Reference Matczak, Bencze and Kühn2010). Much of the literature is ‘theoretical’ in the sense of non-empirical or quasi-empirical, relying on intuitions and anecdotes, rather than solid data. Another way discussions on the formalism of CEE judiciary may go astray is through the unreflective mixing of historical and normative arguments. When historical and normative claims are easily linked with each other, as well as with practical agendas, there is often a fluid transition between academic and practical considerations, participants’ and observers’ perspectives. The result is often a discourse that falls short of the usual standards of both social science and political philosophy in rigour and seriousness.

No doubt, the discourse on judicial reasoning is highly important in practical terms: the self-perception and the legitimacy of the judiciary have obvious consequences for the societies in which it operates. Although, arguably, when it comes to such broader issues of the rule of law, other formal and informal parameters of the judiciary, such as the appointment, independence and political neutrality or bias of judges and courts matter more fundamentally than features of judicial style.

These issues are, however, beyond the scope of this paper. While this paper cannot do justice to the substantive arguments, the methodological and stylistic features of typical positions in this debate are of interest in themselves. In fact, before either pursuing an empirical analysis or engaging in serious normative arguments about judicial formalism in CEE, it is worth reflecting on the very way this discourse has been framed and polarized. The aim of this article is to identify and reconstruct two ideological narratives about the formalist heritage of CEE judiciary, variants of which seem to have dominated academic and policy debates in the last two or three decades. My hypothesis is that it is symptomatic of CEE political cultures that the debate on formalism in adjudication has been conducted in such simplified and misguided terms. The result is a discourse that falls short both in terms of normative and historical plausibility.

This discourse is striking in another respect as well. It seems to reproduce, in the normatively relevant but not directly political domain of legal scholarship, some of the ideological oppositions and controversies that one observes in directly political narratives. As the debate about judicial formalism becomes linked to deeply rooted and long term, sometimes traumatic, issues of national and political identity, patterns of ideological thinking resurface easily. Perhaps the phenomenon of judicial method becoming a battleground for debates about collective identity is not a distinctive feature of CEE political cultures.

In other words, the discourse on legal formalism makes an interesting case study of a broader phenomenon: professional or primarily non-political discourses are embedded in political culture and reflect patterns of thought and unresolved problems of collective (political) identity of the societies in question. In the final section of the article, I will sketch some possible routes for generalization, indicating that other weak or peripheral legal cultures (Monateri Reference Monateri2006) also face and struggle with issues of national identity and collective inferiority complexes which have repercussions on professional discourses. At present, this is no more than a hypothesis: a thorough analysis of this discourse would require detailed case studies, pursued perhaps with the methods and analytical tools of cultural anthropology, political and social psychology.

Thus, I am less interested in determining which of the two opposing positions in this discourse is correct on the merits, i.e. whether this alleged formalism is to be praised or condemned, since I see their common assumption, the distinctiveness-of-formalism, as misguided. Rather, the article suggests making sense of the discourse as a symptom or a symbolic battleground. To be sure, there is a potential danger of reflexivity here. As it was suggested by another commentator coming from the region, some of the academic writings devoted to the analysis of CEE legal thought often end up being themselves ‘interesting exhibit[s] in the gallery of post-communist legal culture, rather than an accomplished study thereof’ (Komárek Reference Komárek2015, 286).

2. Two Symptomatic Narratives

Let me distinguish and briefly characterize two ideal types of narrative in this discourse. Both narratives are concerned with the above three questions (the origins, desirability, distinctiveness of formalism). Both purport to explain as well as to evaluate the persistence of a formalistic judicial style in the region. Both narratives are ideological in the sense that they combine historical and normative jurisprudential claims in the service of practical political or legal desiderata. These two narratives are mutually exclusive but not jointly exhaustive. By calling these narratives ideal types, I mean that they are theoretical constructs that can be more or less useful for the understanding of complex social (here, discursive) phenomena. At this stage, they serve as heuristics for understanding contributions to the debate.

The first narrative interprets formalism in CEE judiciary mainly as the persistent heritage of communist or socialist legal thought and practice. In particular, it is seen as historically linked to the ideology of socialist normativism, the official judicial doctrine in the Soviet Union starting from the late 1930s and in its satellites in the post-Stalinist era, characterized by a rigid statist conception of law and formalist theory of adjudication. Sophisticated versions of this narrative (Kühn Reference Kühn2011) acknowledge the different shades and phases of Marxist theory, communist ideology and socialist practice about the judiciary. For instance, they acknowledge that in the post-revolutionary period in the Soviet Union and for a short period after the communist takeover in CEE, i.e. before the political regime became established and socialist normativism became official dogma, certain anti-formalist ideas about the judiciary had some currency (Ajani Reference Ajani1995). Yet the narrative is based on the historico-sociological claim that there is continuity between the past and post-communist present. Formalism is seen as a persistent feature of the judicial style and the general tenor of its evaluation is negative: it is considered and condemned as a sign of a limited mind, blind conservatism, incompetence or lack of transparency (Fogelklou Reference Fogelklou2002; Kühn Reference Kühn and Melkevik2012). Some variants of this type of narrative also include an apparently contradictory historical claim, according to which in the later period of socialism, legal formalism provided a shelter or safe haven against direct political intervention into judicial proceedings. I discuss this argument in the next section.

As a matter of policy, the formalism-as-bad-heritage narrative leads to a reformist agenda. The diagnosis of historical continuity and the critical normative stance are usually combined with a positive appreciation of the educative or transformative effect of EU law and national Constitutional/Supreme Courts on the (ordinary/lower echelons of the) judiciary (Matczak et al. Reference Matczak, Bencze and Kühn2010). The implications for institutional reform seem obvious: for a thoroughgoing change to happen, (re-)codification and constitutionalization should be accompanied by a re-organization of judicial procedures and practices. This, in turn, may require the training of an entire new generation of judges and other judicial personnel, eventually combined with incentives and sanctions (Kühn Reference Kühn2011).

The second narrative is generally motivated by the perception of EU law (or other real or imaginary supra-national entities, see for example Pokol Reference Pokol2014) threatening national legal systems. In this light, various features of national legal systems, including adjudication and judicial reasoning are seen as defensible and worth defending against such threats. In particular, this narrative interprets judicial formalism as challenged by and resistant to anti-formalistic, i.e. purposive, principle-based and value-laden reasoning required or imposed by the Court of Justice of the European Union or the European Court of Human Rights. The very existence of the second narrative suggests that the negative evaluation of the perceived formalism of CEE judiciary is widespread but not uniform.

In some of its versions, the second narrative interprets judicial formalism as an embodiment of courts’ commitment to the rule of law and praises it with national/regional pride. In order to present formalism as a distinct, historically rooted feature of CEE judiciary, the normative argument needs to be combined with a historical claim. This can be accomplished either by saying that deference to the legislator and respect for the separation of powers is congruent and continuous with socialist judicial ideology and/or self-perception (to that extent and in that respect socialist normativism is seen as defensible) or by switching to a somewhat different historical claim according to which CEE judges learned to resist anti-formalist arguments in the Stalinist period of socialism when judges were required to implement political directives over and above what was seen as legal technicalities. In either way, the reasons for pride include a mixture of historical claims and normative ideas. A nationalist or Euro-sceptical normative stance and some historical claims about formalism merge into a narrative of formalism-as-noble-heritage.

The following quote illustrates how this narrative works.

The quote illustrates the ideological character of the second narrative: by combining anti-Marxist and anti-European allusions with national pride and regional self-confidence, it reflects the ambition to turn historical backwardness into an advantage. It reinterprets judicial formalism as a persistent feature of CEE judiciary with a praiseworthy anti-communist pedigree: formalism-as-noble-heritage. Notice also that this argument not only points at a conflict between what is understood as CEE judicial thinking on the one hand and what is perceived as the argumentative style of ECJ on the other – similar claims are often made from the viewpoint of national judges and doctrinal scholars in older EU member states as well. The argument goes further by suggesting that the CEE judiciary may be seen as representing certain distinct virtues which the ECJ, even the entire (old) EU, lacks, namely: judicial formalism. To be sure, the above quote is only illustrative of the second type of narrative; it does not represent the full views of the author. In a slightly more moderate version of the argument, Bobek (Reference Bobek2008, 23–24) noted that the Moscow–Brussels ‘comparison is, of course, exaggerated; yet there is a grain of truth in it.’

As the post-socialist transformation of CEE national legal systems progressed and unfolded in the last 30 years, to a large extent under the influence of the EU, in roughly the first two decades of the period, the first narrative enjoyed a de facto dominance in the discourse. The reformist agenda being the default option, especially in the accession period and the early years of EU membership, it was the resistance to reforms that needed extra arguments and justification. Yet, the dominant first narrative has been continuously countered, challenged or qualified by arguments from a counter-narrative.

Arguably, with recent changes in the fate of the rule of law and challenges to the independence of the judiciary in Poland, Hungary and elsewhere in the region, this dichotomy has become more complex and is going to change further. Populists might want to present themselves as defending the authority and independence of national courts against transnational influences but they are unlikely to forge formalist or rule-of-law arguments in defence of judicial independence against overreaching national governments and easily refer to popular sentiments and emotions against judicial elites.

3. Formalism-as-Safeguard?

In fact, the connection of formalism to authoritarianism, more specifically, the argument of formalism providing a safeguard for judicial independence under some authoritarian regimes has been raised and controversially discussed in the international literature. Generated by Gustav Radbruch’s claim that positivism made lawyers vulnerable to Nazi law, there is now an enormous and sophisticated literature on the relation between legal formalism and Fascist and Nazi legal ideology (Mertens Reference Mertens2003; Joerges and Ghaleigh Reference Joerges and Ghaleigh2003).

There is less detailed and rigorous comparative analysis of the links between formalism, Communist law and Soviet-type socialism in this respect. Some of the historical claims deployed in these narratives raise obvious concerns of plausibility. When talking about plausibility, it is not the accuracy of one or another factual detail that is at stake (if there are disagreements at this level, they should ideally be checked and eventually rectified by legal historians) but higher-level generalizations about the region or certain historical periods that may render the plausibility of these narratives questionable.

Let me mention an example. Several commentators have argued that at least in the consolidated periods of socialism, formalism allowed the judiciary to safeguard its independence and avoid being politically involved, misused and corrupted (Bobek Reference Bobek2008; Kühn Reference Kühn2011; Mańko Reference Mańko2013a). It is noteworthy that both of the above-mentioned narratives could refer to this alleged safeguarding function of formalism, although with different emphases. The first could argue that in a liberal democracy there is no more need for such isolation and thus formalism is at least to this extent outdated. To the extent, however, that liberal democracies are threatened by authoritarian governments, the safeguarding function could be seen as regaining its relevance. Certain versions of the second narrative could, in contrast, argue that this isolation of the judiciary is a virtuous tradition to be pursued. But in the era of globalization, resistance is needed or at least justified against claims made and policies imposed by (democratically questionable) supra-national entities such as the World Bank or the European Court of Human Rights (Pokol Reference Pokol2014).

Is the formalism-as-safeguard thesis plausible, as a historical claim? To begin with, it is not clear whether the relatively low level of politicization of the judiciary (to the extent this was indeed the case) can be seen as a beneficial consequence or (side-)effect of formalism. Was it not rather the case that certain matters were too unimportant politically to be taken out of judicial and put under direct political control, while others which were sufficiently important were exempt from formal legal regulation? Was the lack of direct political influence in the consolidated regimes and periods of ‘existing socialism’ rather not the outcome of prudential considerations of those in power, symbolically expressed as formalism but never respected for the sake of underlying political principles and values such as the rule of law or the separation of powers? Arguably, when the stakes get sufficiently high, the sheltering effect of formalism is limited or proves illusory in any political system, and not only for the judiciary. Obviously, there is a difference whether formal rules are overridden in an extreme emergency and with public acknowledgement, or as a clandestine daily routine.

In fact, formalism in adjudication could easily be combined with politically motivated manipulation of case assignment. In some legal systems of existing socialism, cases of political importance would be simply assigned to politically reliable judges. So, judges would not (need to) be sheltered, since if they were not entirely politically reliable, they would not be assigned the case in the first place.

Is there then sufficient evidence for formalism having served as a safeguard? Can formalism be a safeguard at all? Surely, implausibility does not mean falsity. While it is not clear how such a claim could be empirically tested (for instance, how many cases of the lack of safeguarding need to be documented to falsify the argument), in principle careful historical analysis, rather than intuitive arguments and anecdotal evidence, could establish with reasonable precision whether, when, and to what extent formalism had such sheltering effect.

4. The Discourse on Formalism as a Symptom

My hypothesis is that the two narratives and the entire debate about judicial formalism in CEE could be seen as symptomatic for some persistent general features of the political culture(s) in the region, surviving from the socialist era or even from pre-1945 times. CEE judicial reasoning and argumentative style raise issues that cannot be described and understood, let alone evaluated, in isolation from other elements of national legal and political cultures. The rivalry of the two narratives is closely intertwined with long-lived ideological tensions inherent in the intellectual life of CEE countries.

This is perhaps not so surprising. The two narratives manifest two types of political thinking in the region and probably beyond. In a broader cultural sense, these tensions are reflected in some ambivalent, symbolic and emotionally loaded notions (‘buzzwords’) that can easily become ideological weapons in political controversies and culture wars. If this hypothesis is plausible, this may in turn bear broader political and cultural implications for the future.

The similarity runs roughly thus. One can associate the first narrative with concepts such as modernization, reform, progress, Enlightenment, and supra-national integration, and the second with tradition, conservatism, Sonderweg, national identity and self-sufficiency. It would be easy to multiply such dichotomies but what is important is that they allude to two characteristically opposed worldviews and political ideologies about modernization and collective identity that jointly dominate the broader field of political thought in the region (Dénes Reference Dénes2012). The opposition reveals, at the ideological level, conflicting views of how ‘peripheral’ nations should cope with challenges of modernization and could be seen as a characteristic feature of national political and legal cultures on peripheries, including but not limited to the CEE region.

In the mid-twentieth century, the Hungarian political thinker István Bibó (Reference Bibó and Dénes2015) wrote extensively about the distorted political cultures of small nations in CEE. He argued that national political discourses of the region are dominated by two stereotypical views about the relation of these small nations to the West or to Empires more generally: ‘false realism’, i.e. a kind of pragmatism on the one hand, and ‘national self-sufficiency’, i.e. essentialist nationalism on the other. Bibó analysed the origins and consequences of this false dichotomy in loosely socio-psychological terms and also suggested an alternative theory of modernization and national identity within a normative political philosophical framework. Some of his recent interpreters spell out the implications of his ideas for current political debates (Dénes Reference Dénes2012).

My hypothesis is that the two narratives on the persistence and distinctiveness of CEE judicial formalism reflect a similar ideological opposition. The issue of judicial formalism easily becomes a battleground for fierce controversies about collective political identity.

The debate between the two narratives is not merely symptomatic. It may also become counter-productive insofar as it reproduces and reinforces what could be called a collective inferiority complex (Mańko Reference Mańko2013a). This is more evident in the first narrative but even the second one, associated with national pride, runs this danger, by revolting against the inferiority complex with an inadequate compensatory rhetoric. Debates over other, less practical and relatively obscure issues in legal scholarship may also implicate collective identity issues and inferiority complexes. Examples include the debate about the very existence or persistence of a socialist or CEE ‘legal family’ within the worldwide taxonomy of legal systems, and the controversy over its deletion from a key comparative law textbook (Mańko Reference Mańko2005, 547–548; Reference Mańko2013b, 24–27).

5. Possibilities for Generalization

In conclusion, let me suggest a number of ways of how this hypothesis about the ideological and identity-generating relevance of judicial formalism can be generalized: chronologically, geographically and thematically.

In Hungarian legal scholarship in the interwar period, it was sometimes claimed that judicial formalism, along with abstract logical thought, are foreign to Hungarian ‘national character’ (Szabó Reference Szabó1942, 11–13). Anti-formalism and customary law were praised as a quicker and more direct route to (substantive) justice. Customary law, of course, referred to the uncodified character of private law in Hungary, a kind of anachronism in the mid-twentieth century but arguably a workable solution. In this type of legal thinking, judicial formalism was linked to ideological debates about national character, as well as to anti-formalist tendencies in early twentieth century Continental and Anglo-American legal thought. In these debates, ‘formalism’ was often used as a catch-all phrase, sometimes associated with liberalism and/or legal positivism (Joerges and Ghaleigh Reference Joerges and Ghaleigh2003). It is quite plausible that with the ideologies of ‘identity-politics and anti-liberalism’ (Trencsényi Reference Trencsényi2020) on the rise (and in power) in a number of countries in the region, these narratives will return to legal scholarship. This would lead to an interesting clash of formalist and anti-formalist arguments and a rearrangement of the two narratives in the ideological landscape.

Formalism in adjudication is linked to national identity and aspirations in other parts of the world as well. For instance, in the 1980s and 1990s there was a lively discourse within the New Zealand judicial and academic legal elite about the distinctness of their national ‘legal method’, i.e. judicial reasoning (see, for example, Bigwood Reference Bigwood2001; Thomas Reference Thomas2005). An important line of argument was a criticism of and detachment from what was considered the formalism of English common law adjudication. The debate was dominated by a narrative that suggested leaving behind formalism as bad (imperial) heritage in favour of what was considered realism or pragmatism in the service of justice or social values characteristic of New Zealand society. But there was also a counter-narrative which questioned the outright rejection of ‘formalism’. What makes the New Zealand debate interesting is the combination of sound jurisprudential arguments and vague references to a national legal method, while the ultimate stake is very practical, in terms of judicial self-perception and self-representation in a nation state at the periphery of a loosely connected supra-national legal family of the Commonwealth.

In fact, the two patterns of thought (adapting models from Europe/the West/the centre of the Empire versus pursuing distinct national paths) can generate ideological narratives not only in law but in any domain of life. Law and the judiciary are just domains where the political relevance is relatively uncontroversial. Other spheres of professional life or institutional practice may become perceived as crucial for collective identity as well. As a non-legal example, consider the debate about the ‘Greekness’ of formalism in industrial design as a battleground for ideological debates on national identity in Greece in the early twentieth century (Yagou Reference Yagou2007).