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Beyond Judicial Independence: What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?


Cristina E. Parau


University of Oxford, Department of Politics and International Relations

December 10, 2009


Abstract:     
The judiciary is a high-impact institution which affects social well-being as well as economic development. Following the fall of Communism, most of the countries in Central and Eastern Europe (CEE) undertook judicial reforms, spurred in part by the conditionality of accession to the EU. What have been the actual outcome(s) of these reform efforts? Have judiciaries in CEE remained subservient to the State, or have they come to exercise uncontrollable power, i.e. ‘supremacy’, over the democratically elected political powers? Has a third possibility, the co-equality of the judicial with the political branches, been seriously considered?

The argument is divided into a theoretical/normative and an empirical part. The theoretical part develops the typology about the relationships that can exist between the judiciary and the elected branches of government and their consequences. The empirical part examines in more detail the type of judiciary that has emerged in post-Communist Romania, assessing and explaining the major judicial reform of 2003-2004 which empowered the Constitutional Court; eliminated recurs in anulare, a mechanism which the Executive could have used to check and balance the judiciary; and greatly empowered and made autonomous the Judicial Council, the putative constitutional guardian of judicial independence. The evidence presented strongly suggest that a particular type of relationship between the judiciary and the other powers of government, which I have labelled 'vicious supremacism' is in process of taking root in the CEE. This outcome has been the result of both external pressures, especially exercised by the EU, and domestic motives.

Paper presented at the Social Foundations of Constitutions Workshop, Wolfson College (Oxford), 8-9 December 2009.

Number of Pages in PDF File: 49

Keywords: courts, judiciary, power, checks and balances, separation of powers, EU influence, Romania

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Date posted: December 14, 2009 ; Last revised: July 24, 2010

Suggested Citation

Parau, Cristina E., Beyond Judicial Independence: What Kind of Judiciary is Emerging in Post-Communist Eastern Europe? (December 10, 2009). Available at SSRN: http://ssrn.com/abstract=1523285 or http://dx.doi.org/10.2139/ssrn.1523285

Contact Information

Cristina E. Parau (Contact Author)
University of Oxford, Department of Politics and International Relations ( email )
Manor Road Building
Manor Road
Oxford, Oxfordshire OX1 3UQ
United Kingdom
HOME PAGE: http://www.politics.ox.ac.uk/index.php/profile/cristina-parau.html
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