Events

You are cordially invited to join a guest session on 16 October 2024, 12.45 CEST/16.15 IST, Jindal Global Law School (JGLS), online via MS Teams (in English). 

Joining link [click here]. Session poster [link here].

Synopsis: One of the fundamental challenges of European constitutionalist discourse concerns the relationship between the law of the European Union (EU), the law of the European Convention on Human Rights and constitutional law of the EU member states. Here, member state constitutional courts have begun to set limits to European (Union) integration, triggering a discussion on the interpretation and legitimacy of such a practice. Is this development sustainable or does it threaten to undermine the functioning of European (Union) integration? How can experiences and insights from constitutionalist discourse beyond Europe help understand (or critique) these developments?

Speakers:

• Professor (Dr.) Markus Böckenförde (Central European University)
• Sarthak Gupta (Supreme Court of India, in personal capacity)

Bios:

• Markus Böckenförde is Associate Professor and Chair of the Comparative Constitutional Law Program at CEU’s Department of Legal Studies. Before joining CEU, he was the Founding Executive Director of the Centre for Global Cooperation Research at the University Duisburg-Essen (2012-2018). As head of the advisory team to the Policy Planning Staff at the German Ministry for Economic Cooperation and Development (Bonn-Berlin) he gained some first-hand practical experience in political decision making processes (2011-2012). From 2009-2011, he was Program Officer and temporarily Acting Program Manager for the Constitution Building Project at International IDEA, Stockholm, Sweden. Between 2001-2008 Markus Böckenförde was the Head of Africa Projects and a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law (MPIL) in Heidelberg. In 2006-2007, he was seconded by the German Foreign Office to the Assessment and Evaluation Commission (AEC) in Sudan as its legal expert. The AEC has been mandated to support and supervise the implementation of the Sudanese Comprehensive Peace Agreement. From 1995-1997 he was research assistant to Justice Professor Steinberger, the German delegate to the Venice Commission. Markus Böckenförde holds a law degree and a PhD (summa cum laude, awarded with the Otto Hahn medal of the Max Planck Society) from the University of Heidelberg and a Master of Laws degree (distinction, valedictorian) from the University of Minnesota as well as the equivalent of a Bachelor degree in political science (University of Freiburg). During the Constitution Building processes of Sudan, Somalia, Tunisia, and Libya, he has worked together with the pertinent constitutional assemblies and has been otherwise involved in the processes in Afghanistan, Nepal,Yemen, and Myanmar. He is the co-author of International IDEA’s Practical Guide to Constitution Building (also translated into Arabic, Myanmarin, and Vietnamese) and several Max Planck Manuals on Constitution Building. He has worked as a consultant on constitutional issues for the UN, UNDP, GTZ, DAAD, International IDEA, the German Foreign Office, the Friedrich Ebert Foundation, and the Konrad Adenauer Foundation.
• Sarthak Gupta serves as a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India and is currently working with Justice Sandeep Mehta, Judge, Supreme Court of India. He holds a B.A.L.L.B. (Hons.) degree from the Institute of Law, Nirma University, India. He is also a Helton Fellow at the American Society of International Law. His academic blog posts appeared on IACL-AIDC blog, Verfassungsblog, EJIL Talk! and elsewhere.

The guest session is sponsored by the JGLS and co-organized with Aman Gupta, LL.M. (Lecturer, JGLS) and Varishtha Singh (student, JGLS).

You are cordially invited to join a guest talk followed by a discussion on 25 September 2024, 12.45 CEST/16.15 IST, Jindal Global Law School (room T1-G03) and online via MS Teams (in English). 

Joining link [click here]. Poster [link].

Synopsis: The European Court of Justice, like most courts, renders decisions on the basis of the cases and questions that are brought before it. However, that is not the only role it has been ascribed, for it is also a quasi-constitutional tribunal, a federal arbiter, and an important policy maker. This talk will elaborate on the important policy choices the court has made in the process of constitutionialising the EU legal order. We will have a comparative look at the Court’s powers and discuss its role in shaping EU social policy.

Speaker bio: Franziska Pupeter is an SJD candidate and researcher at the Central European University. Her fields of expertise include comparative constitutional law, EU constitutionalism and EU social policy and she also works on a research project on the labour rights of platform workers. She earned her law degree from the University of Vienna and an LLM in comparative constitutional law from the Central European University. In her EU law-focused research, she endeavours to bridge and combine doctrinal legal research with interdisciplinary approaches.

Suggested background reading: Barnard, Catherine, 'EU ‘Social’ Policy From Employment Law to Labour Market Reform', in Paul Craig, and Gráinne de Búrca (eds), The Evolution of EU Law (Oxford, 2021), 678-708.

The guest talk is co-organized with Aman Gupta, LL.M. (Lecturer, Jindal Global Law School) and Varishtha Singh (student, Jindal Global Law School).

Event recording [link].

You are cordially invited to join a guest talk followed by a discussion on 2 September 2024, 10.35 CEST/14.05 IST, Jindal Global Law School (room T3-G43) and online via MS Teams (in English). 

Joining link [click here].

Synopsis: To fully understand the role of courts within the European constitutional landscape, we must examine not only their constitutional function, but also how they are influenced by broader Europeanization processes. This talk will explore the interplay between national and supranational courts through several case studies, with a special focus on Central and Eastern European countries.

Speaker bio: Arnisa Tepelija is an SJD candidate in Comparative Constitutional Law at Central European University in Vienna. Her work is focused on judicial independence in South Eastern European countries and processes of Europeanization thereof. She holds a Master of Science Degree in Law from the University of Tirana, and an MA degree summa cum laude in Advanced European and International Studies from Centre International de Formation Européenne (CIFE) in Nice, Berlin and Rome. She is an expert, researcher and author of many papers related to the rule of law, anti-corruption and EU Integration, and has been engaged as consultant and advisor to international organizations and governments on these matters.

Suggested background reading: Sadurski, Wojciech (2012). Constitutionalism and the Enlargement of Europe. Oxford: Oxford University Press, xvii–xxviii.

The guest talk is co-organized with Aman Gupta, LL.M. (Lecturer, Jindal Global Law School) and Varishtha Singh (student, Jindal Global Law School).

Event recording [link].

On Tuesday, 7 May 2024, the Department of Political Science of the Comenius University hosted a discussion with a multidisciplinary study group of scholarship holders from the Hans-Böckler Foundation, including two scholarship holders from the University of Göttingen. The panel moderated by Campbell MacGillivray, M.A. (PhD candidate, University of Göttingen), included Professor Emília Sičáková-Beblavá (Institute of Public Policy, Comenius University) and Dr. Max Steuer (Department of Political Science, Comenius University and 'Talking Courts' project coordinator). The discussion covered a wide range of issues, including modern history of Slovakia and its legacies of non-democratic practices, the founding of the Slovak Republic in 1993 after the dissolution of Czechoslovakia, the consequences of the dissolution of Czechoslovakia on the text and practices of the Slovak Constitution as well as public policy-making. The panelists and participants engaged with, among others, the role of scrutinizing and improving specific public policy areas as well as the utilization of both grand and local narratives of constitutionalism and democracy, the positioning of Slovakia in the Visegrád region, Central Europe including Germany and the European Union more broadly, or the avenues to protect democracy in Slovakia by institutions (including the Slovak Constitutional Court, media, think tanks and NGOs) and the public at large in light of contemporary developments. The discussion emphasized the democratic foundations of Slovakia and its achievements in the last 30 years, but also enduring unaddressed public policy issues that combine with contemporary illiberal narratives and represent a risk for its democratic future.

The national round of the Slovak Human Rights Olympics engaged with the role of judiciaries in democratic societies in 2024 as well, including through a specialized workshop for the participants on the topic of the European Union and the rule of law on April 17, 2024. The guest of honour of this workshop from among active judges was Dr. Barbara Pořízková, Vice-President and Judge of the Supreme Administrative Court of the Czech Republic, who is also a member of the panel provided for by Article 255 of the Treaty on the Functioning of the European Union ("255 Comité").

The discussion during the workshop was joined by Mr. Radim Dvořák, Deputy Head of the European Commission's Representation in Slovakia and Head of the Political Team, while the moderator was Associate Professor Erik Láštic, Head of the Department of Political Science, Comenius University in Bratislava, and member of the "Talking Courts" project team. 

We are delighted that the organizing committee of the Human Rights Olympics devoted dedicated space to this key topic also in 2024.

Photos © Human Rights Olympics.

REPORT

On April 17, 2023, the two-panel plenary event of the ‘Talking Courts’ initiative was hosted by the Department of Political Science of the Comenius University in Bratislava, Faculty of Arts, in collaboration with several Talking Court project partners including the J. William Fulbright Commission for Educational Exchange in the Slovak Republic and O.P. Jindal Global University, Jindal Global Law School. The event brought together a distinguished group of speakers and participants around the table, from academia, state institutions (notably apex courts and public institutions dedicated to fundamental rights protection and monitoring), and domestic and international non-governmental organizations.

The event was the highlight of the initiative aimed at transcending the traditional silos, whereby exchanges about courts are relegated to law faculties and communities of lawyers instead of more interdisciplinary audiences, or at best, if presented from a Political Science perspective, engaged with through narrow angles of behavioral approaches which conceive of judges as partisans akin to political actors in the executive or the legislature.

The engagement with a richer account was supported through the dialogical elements between the US and the Central European (particularly Slovak, but also Czech, Hungarian, Croatian and Romanian) perspectives. While, undoubtedly, significant differences persist in the design of the federal US judiciary and justice system and the Central European jurisdictions hailing predominantly from a civil law tradition, this distance at one level translated into openness to mutual learning and appreciation of those fundamental principles that apply for judicial decision making regardless of institutional developments.

The event consisted of two sessions, one investigating the role(s) of judges in democracies more broadly, while the other zooming in on the roles of judges as educators and the educated, against the backdrop of education about judiciaries in the society at large.

The sessions adopted the model of main speakers opening the debate but accompanied by a series of short interventions, with the aim to highlight what diverse participants consider to be the key issues associated with the discussion themes and how these themes resonate with the jurisdictions they are most familiar with.

Politics, Trust and the Language of Democracy

The event was opened by the Vice Dean for International Relations of the Comenius University, Faculty of Arts, Dr. Aneta Világi, who emphasized the relevance of the topic for Slovakia in 2023, due to the low trust in the judiciary and the rule of law. In his opening remarks, Talking Courts project coordinator Dr. Max Steuer underscored the concept behind the event as embracing a richer meaning of politics than only partisanship and bias, following the philosophy of Hannah Arendt. Courts, in this reading, are impartial, but political institutions committed to the safeguarding of freedom for individuals and communities who interact with the public sphere.

The opening remarks were followed by the speech of the President of the Supreme Court of Slovakia, Dr. Ján Šikuta, who referred to the Israeli Supreme Court President Aharon Barak. Barak, in his book The Judge and Democracy, identified two key roles for a democratic judge: bridging the gap between law and society, and protecting the constitution and democracy. For President Šikuta, who was also judge at the European Court of Human Rights, democracy is not merely formal, residing in the sovereignty of the legislature and free and fair elections, but it is also ‘real’, i.e. ‘expressed in the notion of separation of powers, rule of law and its fundamental principles of the independence of the judiciary and human rights.’ Such reading of democracy requires the judges to continuously educate themselves, and, when engaging in interpretation, to consider ‘not only the wording of the law, but also its meaning and purpose’ in the social context. The Supreme Court in Slovakia also plays a role in unification of the law and publication of authoritative opinions, which is even more important due to the diversity on the bench, a key value for quality judiciary.   

The first session chaired by Dr. Kirsten Roberts Lyer (Associate Professor, Central European University, Department of Public Policy) generated a debate between experiences from the US, Slovakia and international courts. Judge David G. Campbell, Senior United States District Judge for the District of Arizona and Chair, U.S. Courts’ Committee on International Judicial Relations, following up on President Šikuta’s remark on legal interpretation, presented four key considerations for a judge in a democracy:

1.     to ‘faithfully interpret and apply the law enacted by the representative branches of the government’, meaning, ‘as [the law] was intended’ by the representatives, and ‘not [to] rewrite the law’;

2.     ‘when necessary in a democracy […], to apply the rule of law to check the other branches of the government when they violate laws or when they step beyond their proper boundaries’;

3.     ‘to apply the rule of law to protect individual rights and to protect individual freedom, even when that may require a judge to rule against a government or to rule against public opinion’, because ‘individual liberty lies in the heart of democracy’;

4.     to ‘take the second and third steps […] even when it is contrary to public opinion and even when it is vigorously opposed by the government that the judge is ruling against’.

However, according to Judge Campbell, for the judges to be able to perform their role in the above manner, their societal context must support judicial independence from the other branches of government, judicial integrity as ‘honesty, fairness and transparency on the part of the judge’, judicial restraint (‘modesty where [judges] need to stay within their proper role’ and readiness to ‘check themselves’ as well) and public acceptance of the courts’ roles. 

Professor Cornell W. Clayton (C.O. Johnson Distinguished Professor of Political Science and Director of the Thomas S. Foley Institute, Washington State University; Fulbright Specialist, Comenius University in Bratislava, Department of Political Science) underscored his designation as a political scientist and as such as thinking about the judiciary as ‘intricately connected to a broader political system, and less autonomous from that political system’. He presented the view that the role of the judge is shaped by the type of court they are appointed to: apex courts raise very different questions about the role of judges and democracy than the lower courts’ judges. Where for the former, the concern is much more about the fundamental principles of constitutional governance and democracy, i.e., democratic principles and principles of justice, whereas the lower courts are more concerned about the fair application of law and legal documents in the case present before them. Confining his remarks to apex courts, Professor Clayton pointed to ‘a gap between the internal perspective of how judges operate on these courts and the external perspective of what the public and other political leaders think these judges are doing in court.’ While judges typically claim to be ‘neutral umpires of politics’ and ‘not engaged in politics’ (referring to the statement of US Supreme Court Chief Justice John Roberts during his confirmation hearings in 2005), the public perceives them as making political choices. More than 80 years of (predominantly US-centered) social research points to the alignment between apex court decisions and the political ideology of their judges (notably stemming from the work of US academics Segal and Spaeth). The reasons for this gap have to do with the dependence of law, at some level, upon underlying political values, which give purpose to the practice of law, but are also behind an inherent degree of indeterminacy in law.

Criticizing those who believe in a ‘neutral formula’ (following Herbert Wechsler), Professor Clayton urged, especially in common law systems, to advance ‘a different language’ to talk about what these courts do, one that is not so relying upon legal, formless ideas of legalism, and one that is much more tied to democracy and doing justice. This shift, both when judges talk about themselves and when others talk about judges, matters because, for judges to have authority, it does not suffice that they persuade political leaders and the public opinion about the correctness of their decisions in terms of law. Rather, they need to show that these are correct also in terms of justice and democracy, which ‘legal formalism’ is unlikely to be able to achieve. Moreover, ‘legalistic terminology’ obscures that courts are making decisions about what is the ‘meaning and practice of democracy’ in their respective societies, and if they retreat into the language of legalism, they are not educating the public about why we should protect these values, why some values are in a democracy are more important than others, and how courts and judges think.

The two US speakers’ perspectives were followed by the Judge and Section President of the Supreme Administrative Court in Slovakia (a court operational since 2021), Mgr. Michal Novotný, and prominent Slovak rule of law activist and attorney, Mgr. Eva Kováčechová, both underscoring some of the systemic issues from the perspective of experiences with the Slovak judiciary. Judge Novotný began by raising a concern with the appointment model of Slovak judges, where judges themselves play a prominent role. This risks the ‘judicial branch replicating itself’, of the current judges in the system, instead of allowing for new ideas and approaches.

Despite this concern, Judge Novotný sees the benefit of Slovak judges protecting democracy which, echoing President Šikuta, he does not see merely as the role of the majority, but also ‘the rule of law, which is essentially what a judge can count on in a democracy where he/she is not democratically elected’. This is ultimately necessary for the judge to fulfill the dictum of adjudicating according to the law. Raising the example of the acquittal of the suspected murderer of the journalist Ján Kuciak and his fiancée, the speaker noted that due process needs to be adhered to and quick judgments of the public must not be followed by courts without proper evidence and despite the risk that the public might see the court as ‘hindrance’ to justice due to the latter’s insistence on procedural standards.

Yet, the intertwining of the rule of law and democracy does not mean that judges do not need public trust. This is low in Slovakia also due to ‘huge gaps and huge walls between the judiciary on the one hand, and the civil society on the other’. Overcoming them requires judges to publicly admit that they are ‘neither gods, nor have superpowers’, and are prone to errors as any other human being. Yet, judges committed to their role are, same as in any other profession, ‘trying their best’ and are ‘open to the public checking this performance’. Judge Novotný voiced the concern of this call to openness being misunderstood and feared from by some judges as a road towards undermining the authority of the judiciary but, in fact, it is the only avenue to maintaining and buttressing that very authority.

Attorney Kováčechová devoted her remarks to outlining three concrete ways to improve the Slovak judiciary. In her view, the judicial selection procedures need to emphasize integrity more than only formal knowledge, as otherwise ‘there are people who are judges who should never become judges’. Secondly, more attention is needed to calibrating disciplinary proceedings, such that they are not used as a weapon against judges who do not share the same positions as some of their senior colleagues, and yet also scrutinize breaches of ethical conduct. This may lead to complicated rules from the perspective of the public, but they are nevertheless important for advancing ethical conduct in the Slovak judiciary and judicial integrity. Thirdly, Slovak judges should work on their communication skills with the public to build mutual trust, especially in cases of high public interest, and indeed be open to public scrutiny. The decision alone is not enough to be published; judges need to be able to explain, when delivering a judgment, why they decided the way they did. For example, in a recent Slovak case of a reckless drunken driver who killed five students, the first-instance judge did not order a custody sentence during the criminal trial because he did not see the legal grounds for it to be fulfilled. The ‘public hate against this judge’ was widespread, he even received death threats. This, according to Kováčechová, was triggered partly by the judge publicly explaining the decision only after some time, and not immediately in the moment when it was announced.

Dr. Antal Berkes, public international lawyer and Lecturer at the University of Liverpool, opted to focus on the jurisprudence of regional human rights courts in the context of electoral systems and judicial independence as two key features of democracy that these adjudicative bodies engage with. Regional courts are ‘aware of the national systems’, but also of the ‘global context’. The very establishment of regional human rights courts was to respond to antidemocratic developments, such as civil wars or totalitarian governance. Courts analyze both global and national context, and their starting point to think about democracy is often a procedural one, focusing on the right to fair trial, or based on the right to vote in particular.

Referring to cases of the European Court of Human Rights in Strasbourg and the Inter-American Court of Human Rights, which in his view try to ‘educate about democracy’ through these cases; for example, the latter court, in an advisory opinion, has underscored the significance of gradual development towards democracy, that may be undermined without sufficient safeguards even under the conditions of free and fair elections. In Berkes’ view, the increased number of significant cases pertaining to right to fair trial in Hungary and Poland indicates how regional human rights courts aim to contribute to slowing down autocratization in these countries particularly through references to fair trial and judicial independence. This is also a way to recognize the long-term effects of transformations on the judiciary, which may persist even long after elections and potential power transitions in the executive and the legislature. Ultimately, for Berkes, democratic judiciaries are also about dialogue, with courts engaging with the case law of each other, citing each other’s cases, even beyond particular jurisdictions (such as interaction between the regional human rights courts). Yet, they know strategically that they are not ‘fourth instances of national courts’ and cannot go too far in infringing sovereignty which could prompt backlash and non-compliance.

Dr. Mátyás Bencze, Professor or Law and Senior Research Fellow from Hungary, in his short intervention underscored that the phenomenon of judges following public opinion or priorities of particular political leaders that was warned against by several previous speakers could be called ‘judicial populism’. He considered judicial populism to be on the rise due to the increased public pressures on the judges and the latter’s need for public legitimacy. But it is the wrong answer to the dilemma of the judge, because it is often not, in fact, democratic, emerging from the public at large, but pressed by particular media and political elites who claim to speak on behalf of the public. Furthermore, it may easily backfire, with the judges being seen as increasingly biased and untrustworthy.

Within the short time left in the session, participants raised questions particularly on judicial reform that would help reduce the distance between judges and the public, without compromising judicial independence. Dr. Berkes pointed to the importance of links between regional human rights courts and civil society, which may bypass member state governments and unfold transnationally. National judges’ participation in cases handled by regional human rights courts may help the latter’s authority, and President Šikuta highlighted several mechanisms which are already in place in Europe in this context. Judge Campbell emphasized that restoring trust when it is missing in any relationship takes time and effort, the starting point is ’turning down the temperature’ in the political dialogue, avoid talking too quickly too negatively about the courts particularly by the political elites. This avoidance of inherent skepticism about the judiciary’s performance as it is often being depicted was identified as crucial by Judge Novotný as well. ‘Norms of stability and civil discourse’, in the words of Professor Clayton, are needed, regardless of whether in a civil or a common law system.

Courts and Education: Don’t Teach (Only) the Law, Teach Democracy, Teach Justice

The second session chaired by Associate Professor Erik Láštic (Head of the Department of Political Science, Comenius University in Bratislava) encompassed three interconnected dimensions on the relationship between judiciaries and education: education of judges, judges as educators and education of the broader public about judiciaries.

On education of judges, Judge Campbell noted that there are relatively rigorous education programs and quality publications for US federal judges with an important role played by the Federal Judicial Center. Moreover, even ‘baby judges’—recently appointed US federal judges—are seasoned lawyers frequently taking the bench after decades of experience in the legal profession. While these training programs are not mandatory, many judges make use of them. Even at the level of many US states there are impressive educational programs (for example, run by the Judicial College of Arizona for state judges in Arizona).

Professor Clayton agreed that judges can be of great value for education of the younger generation, and that this practice is not uncommon in the US. When it comes to legal education, however, despite the longer democratic trajectory in the US as compared to Slovakia, systemic problems arise here as well. Law students are not sufficiently trained to ‘read more broadly outside (of law), to read about history, to read about democratic theory, to read about how democracies and principles of democracy and justice are essentially politically contested idea and to deal with how we contest those ideas.’ In his view, a narrow conception of legal ethics dominates in the law schools, where the focus is on lawyer-client relationship but not on the broader responsibility of lawyers towards the political and constitutional system as a whole; they are not taught that they have obligations that are just as important as representing their clients, obligations to protect the fundamental principles of a democratic, constitutional government. This has, as its consequence, the existence of many legal professionals who do not feel commitment to contribute to the broader civic space. The education about the US Constitution as purely a legal document, rather than a political document, contributes to this malaise, as well as the limited diversity of former professional careers and experiences of US judges, particularly at the apex courts.

Dr. Zuzana Vikarská, Assistant Professor at the Masaryk University in Brno, pointed to the peculiarity of the post-communist context, where many older judges have not had subjects in school that even remotely enabled them to think about broader societal issues. While there are avenues how they can ‘catch up’, these are rarely mandatory, and hence not all judges undertake them. Younger judges, in turn, sometimes struggle due to the all-encompassing nature of legal education, which offers limited options to specialize from early on for those who have an ambition to become judges (as opposed to occupying another profession) already during their legal studies.

A critical voice towards the current state of university education was also articulated in the discussion with the audience. Dr. Helena Tužinská (Associate Professor at the Department of Ethnology of the Comenius University) argued that university education sometimes appears as training in incomprehensible language that creates a form of communication accessible only to other legal professionals, who consequently lose the skill to be able to explain matters to the public. This was underscored by Dr. Viliam Figusch, former head of the Council of Europe office in Slovakia, with an anecdote that, in a well-written decision, 90 per cent should be understood by everyone and only 10 per cent should require higher competence to engage with.

Dr. Peter Čuroš (Assistant Professor, Polish Academy of Sciences, Warsaw, Poland) shared a perspective on the Slovak context of judicial education. Here, a key role is played by the Judicial Academy of the Slovak Republic, which regularly invites Slovak and international experts as well as other judges to foster Slovak judges’ qualifications. At the moment, there is little scrutiny of the work of the Judicial Academy and its contribution to judicial education. For future judges, however, the university is a key setting, and ‘if we want to have the judges towards democracy, we have to train the students to be democratic judges’. Building on the tradition of critical legal scholarship, for Čuroš, university education entails ideological choices (in the sense of signifiers), including on whether and how to teach about democracy. This is often missing at Slovak universities, even at the level of critiquing judicial decisions rather than taking them as ‘given’, as canons, which need to only be built on. University education should also foster respect, in a sense that judges show appreciation towards the parties instead of treating them as their subordinates, and avoid discriminatory remarks in the courtroom and their decisions. Judges do not need to write a doctoral dissertation on all issues they decide, but they should be versed in writing decisions such that not only experts can read them.

With respect to judges as educators, several speakers pointed out that education is often one of the few or even the only exception which legal regulation allows judges to engage in simultaneously to their profession. Yet, besides questions whether they may do so commercially, there is lack of systematic support or rewards for judges engaging in educational activities, which means that only some do, on a voluntary basis and on the top of their official responsibilities. Referring to Justice Ruth Bader Ginsburg’s emphasis on listening and learning from others, Judge Flack-Makitan highlighted why not only high court judges, but all judges ought to engage in educational initiatives. Professor Marieta Safta (Professor of Constitutional Law, Titu Maiorescu University Bucharest, Faculty of Law, Romania, and former assistant magistrate and chief of the assistant magistrates at the Romanian Constitutional Court) praised internship programs sometimes offered by courts which allow students directly to interact with judges, as well as legal education at schools based on direct interactions of pupils with members of the legal professions. Furthermore, she intervened on the significance of cooperation between constitutional judges and academia. Though not a panacea, collaborative fora that encompass both sitting judges without an academic appointment and academics without a position directly at the court are helpful for mutual support and even improvement of legal interpretation. Here, judges are both educators and the educated at the same time.

Judge Campbell noted the scaling back of civics education in US schools, because of which many students complete their basic education without having an opportunity to understand how the government works. For courts, it is difficult to make themselves widely known to the younger generation without broader support from the educational system. Judges can engage in this agenda after their retirement, as was the case of US Supreme Court Justice Sandra Day O’Connor, or in addition to their core commitments—for example, the Federal District Court of Arizona has a committee of judges ‘the sole purpose of which is to try increase public education by sponsoring programs for high school students coming to courts, or judges and lawyers going to schools.’ The National Constitution Center in Philadelphia also coordinates with judges and lawyers for them to appear by video in classrooms around the country and elucidate court operations. But a few one-hour classes, however important, cannot replace systematic education.

The broader lack of understanding of judicial roles contributes to misperceptions about the judiciary when it is ‘judged by everyone’, or unrealistic expectations from it that no party would ever be disappointed by a fair judicial decision. According to Judge Ksenija Flack-Makitan from the Commercial Court in Varaždin, Croatia, this is tied to the broader lack of civic education; ‘most citizens of the EU think that democracy just means going to a place to cast votes periodically […] if the citizens don’t understand the basics of democracy, they won’t understand what rule of law means, and with that attitude, we cannot change the perception of judges’ work’.

The public obtains insights into judiciaries channeled through regular and increasingly also through social media, but judges and court staff are rarely trained to effectively master these tools, and, especially in smaller countries such as Slovakia, there is insufficient infrastructure and interest to support specialized journalism and reporting about courts’ work. Journalists are, consequently, a key constituency for trainings about the roles of courts and their day-to-day operation.

As Judge Campbell pointed out, a few high-profile cases decided by the apex courts often disproportionately shape the public images of judiciaries: ‘if our citizens could see the work that is done in the vast majority of cases where judges are really trying to get it right and where, in most cases, they go get it right and it is deliberative and it is thoughtful, and it is clear they (the citizens) would have a far different view of the justice system than the one they get by hearing about a few sensational cases that get into the media or the big political issues’.

Yet, speakers also agreed that the tendency of newsworthiness is a matter of fact, and so the significance of professional communication in high-profile cases must not be underestimated. More accessible materials, such as case recordings and information summaries prepared directly by the court staff, could be helpful, but, in the end, there is no escape from the need to simplify the language used by judges in their decisions: ‘if we are simply writing opinions that only other lawyers can understand, we are not able to appeal to the common conditions that people have or the things they are serious about.’ Here, Judge Campbell highlighted the unintended positive side of the pandemic consisting of the use of digital technology for improved understanding of, as well as greater participation in, court proceedings. One of the examples thereof in the US context are juries, which may serve an educational mission, as well as public presence in judicial selection proceedings as per the specifics of the particular legal system.

All in all, the unresolved (or insufficiently discussed) connection between judiciaries and education has prospects to become a key topic for study and reflection on judiciaries and democracies in the years to come. This is illustrated by the contrast between the first and second session of ‘Towards Democratic Judiciaries’. While, when discussing the roles of judges in a democracy in slightly more abstract terms in the first session, a variety of (not necessarily compatible) associations with democracy was invoked, in the latter a broader reading of democracy, one that requires guarantees for education on its principles, was virtually unanimously present in the discussion. Such readings may be decisive for shaping the judicial roles after the September 2023 parliamentary elections in Slovakia, where an illiberal majority might emerge with ambitions to curtail judicial independence. Yet, they are also important for thinking about judgeship not only as a profession, but also as a vocation that comes with strong ethical commitments beyond satisfying formal legal standards.

Report prepared by Dr. Max Steuer, Project Coordinator. The preparation of this report was assisted by Vaishnavi (student, Jindal Global Law School).

Synopsis: Few today doubt that courts are important for safeguarding and maintaining democracy, particularly if democracy is not to be restricted to competition among strongmen. The 'D' word has nevertheless been frequently avoided in judicial discourse, particularly in civil law systems, due to it being seen as too much tainted with 'politics' instead of with 'law'. In turn, discussions about the 'law of democracy' tend to be confined to elections and, at best, referenda and other instruments of direct public participation in politics.

This event aims to engage with democracy in the context of courts and judges without confining the concept to elections. In so doing, it opens questions of judicial legitimacy in democracies and the role of courts and judges as sources of democratic legitimacy, the role and relevance of representation and diversity on the bench, the impact of societally unpopular decisions on courts, and the relationship between executives, legislatures and judiciaries.

Bringing together 'court insiders' (judges and advisors/clerks at the courts) with academics and members of the legal professions, it fosters a multidirectional transfer of ideas on democracy in judicial decision making and its societal reflections, that will strengthen our understanding of the role of courts in the 'democratic ecosystem' of the present. With Slovakia and the US centre-stage, insights from other jurisdictions as well as international courts are encouraged.

Program (pdf)

Photos and poster © D. Jurášová.

Thanks to the collaboration with the Human Rights Olympics as well as other partners and personalities, Talking Courts was present in several regions of Slovakia during the regional rounds of the Human Rights Olympics, on 9 February 2023.

The following discussions took place:

• Nitra region: Secondary Grammar School in Vráble, Vráble. Guest: JUDr. Dušan Špirek, judge of the District Court in Nitra
• Trenčín region: Secondary Grammar School of V. B. Nedožerský, Prievidza. Guest: JUDr. Ján Hrubala, President of the Specialized Criminal Court of the Slovak Republic
• Trnava region: Secondary Grammar School of Pierre de Coubertin, Piešťany. Guest: Mgr. Michal Novotný, judge and senate chairperson, Supreme Administrative Court of the Slovak Republic
• Žilina region: Secondary Grammar School of St. Francis of Assisi, Žilina. Guest: JUDr. Róbert Urban, judge of the Regional Court in Žilina

This opening online roundtable (with English-Slovak translation) to the ‘Talking Courts’ project held on 9 December 2022 offered an exchange experiences with adjudicating COVID-19-related cases since the outbreak of the pandemic. The global scope of the roundtable with speakers from Croatia, India, Slovakia and the United States enabled a unique multi-directional learning experience between very diverse constitutional systems, all of which are nevertheless committed to key principles of democracy, the rule of law and judicial independence. The roundtable engaged with some of the major challenges courts have faced, and how they addressed them, providing cross-fertilization of ‘insider’ perspectives on the judiciary. 

Programme and speaker information (link)

Recording of the event (in English, subtitles of the segments spoken in Slovak  © Vaishnavi) (link)

The discussion opened with a series of reflections on the speakers’ experiences with the pandemic which showed the ‘unity in diversity’ (Advocate Apoorva Jha, Legal Researcher to the Acting Chief Justice of the High Court of Delhi) in relation to the challenges faced by judiciaries under the COVID-19 conditions. While all courts had to grapple with the unexpected closure of courtrooms and other restrictions as well as the difficulties with working from home and with access to electronic materials only, the impact of these challenges differed across jurisdictions as well as within them. For example, the US had 51 ‘laboratories’ where to experiment, given its federal system and 50 states (Judge David Campbell, Senior Judge, United States District Court for the District of Arizona).

In India, the courts had to decide on questions of life and death pertaining to the oxygen supply allocations. In Slovakia, the Constitutional Court primarily dealt with reviewing emergency measures implemented by the executive, taking into account that it takes time for individual petitions to reach the bench, since this is not a general appellate court. The Croatian and the US judiciaries were, to some extent, prepared in terms of technological requirements and legislation for online hearings, but diversity persisted according to the types of trials as well as the experiences of judges themselves. Moreover, in the US, federal courts were not allowed to hold remote hearings in criminal matters until the passing of the CARES Act.

Courts also needed to self-define their roles during an emergency. The pandemic was primarily a playing field for the executive, followed by the legislature. However, for the citizens it remains essential to have judiciaries as a platform which hears their grievances, when they feel that their fundamental rights had been violated by the state (Dr. Ján Štiavnický, Senior Advisor of the Constitutional Court of the Slovak Republic). If anything, the pandemic has amplified the ‘human dimension’ of judicial decision making, which, combined with the legal aptitude, can strengthen the authenticity of judges’ pronouncements. At the same time, in Slovakia, the lack of education led the public to be prone to misinformation and further undermined the trust in public institutions (Judge Martin Vernarský, Judge of the Constitutional Court of the Slovak Republic).

The digital divide persists, including within the judiciary, and, on the top of it, some types of hearings, if held online, are ‘much harder to resolve when you don’t have people in the room’ (Justice Matthew Cooper, Former Judge, Supreme Court of New York). Yet, online hearings and remote communications can be empowering, and help regain trust in courts that is a shared concern across jurisdictions. Dedicated judges ‘learned through practice’, prepared guidelines for their colleagues and even taught other participants of the legal process how to effectively engage in online hearings, with increased availability of the judges for queries and establishment of new systems to provide quality information on the trials; in some ways, the pandemic ‘moved our courts into the 21^st century’ (Judge Ksenija Flack Makitan, Judge, Commercial Court Varaždin, Croatia).

While online hearings should not altogether replace in person ones, the roundtable pointed to the desirability to retain their best practices and features that are empowering towards public participation in the legal process, openness and transparency, allowing more individuals to see into judicial decision making and comprehend the judges’ effort to search for the right answers (Judge Campbell). The pandemic may trigger further movements towards online hearings, such as in Indian district courts and states where otherwise large distances need to be travelled to reach the courtroom.