Authors

Max Steuer¹;  ¹ Comenius University, Slovakia

Discussion

Legal scholarship, while rarely presented under the traditional heading of ‘science’, may nevertheless influentially shape legal regulation and its application. Constitutional scholarly discourses, focusing on the foundational elements of legal systems, have nevertheless been understudied in the literature. Central Europe including the so-called ‘Visegrád Four’, four EU member states with very similar historical legacies, has been among the particularly neglected spaces for research on this phenomenon. This paper contributes to the understanding of (socio-)legal knowledge generation pertaining to a central institution in authoritative interpretation of the principles political communities are governed by: constitutional courts and constitutional judgeship, with particular emphasis on the rise of concerns over global autocratization undermining more democratic futures since 2010. Here, again, the ‘Visegrád Four’ and Central Europe more broadly has raised concerns, with Hungary being a frontrunner autocratizing EU member state, followed by Slovakia in the post-2023 electoral landscape. The paper proposes a framework to address this question via systematic coding of scholarly resources of the scholarship on constitutional court agency, focusing on the potential and limits of constitutional courts’- and judges’ resilience. In developing the framework for data collection and analysis, the paper points to the value of scrutinizing the scholarly conceptualization of democracy, indicating how competing conceptions of democracy have a bearing on the understanding of the constitutional courts’ resilience vis-à-vis autocratization. This impact may appear both in terms of normative (in)appropriateness of judicial action and empirical evidence for its presence or absence. The paper discusses the potential and limits of the coding process and presents examples of particular scholarly standpoints on constitutional court resilience including in the ‘Visegrád Four’. While such standpoints might not affect judicial agency, given the linkages between scholarly and judicial discourses, including through judges who are scholars themselves, or legal education, any disempowering effects that scholarship suppressing or denying the relevance of judicial agency might have on judges before they decide require serious attention. Ultimately, the study raises the normative question of scholarly responsibility for self-fulfilling prophecies of eroding constitutional court resilience vis-à-vis autocratization, especially in spaces with considerable anti-democratic legacies.