Jakab, András

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Bringing a Hammer to the Chess BoardAndrás Jakab 2020-06-25T14:33:03Imagine a perverted chess competition during which one of the competitors takesan iron hammer to every single chess match where, in front of everyone, he hits hisopponent on the hand if the intended move seems to be too smart. If you were amember of the audience (with purely academic interest) watching this take place,then you would probably not attempt to thoroughly analyze the actual chess movesor to reconstruct the match in a chess journal either, and you would frown uponthose who do for their hypocrisy. Doing so presupposes that the result of the matchactually depended on the smartness of the chess moves.The Rule of Law as a Precondition of Doctrinal-Conceptual Legal ThinkingIn cases where constitutional law is slowly losing its normative force, sophisticateddoctrinal-conceptual systems (Verfassungsdogmatik) may even become ridiculousand, to some degree, dishonest. While showing a very few examples of doctrinalabsurdities in a judgment of a captured and subservient constitutional court canbe meaningful (also in order to corroborate the claim about its captured nature),writing a thorough doctrinal analysis on such a judgment is a futile, frustrating andmeaningless exercise (see the podcast by Franz C Mayer on Verfassungsblog onthe Polish Constitutional Court).A thorough doctrinal analysis can even legitimize the theater of legalism by takingseriously words which are not worth to be taken seriously. Judicial decisions ofcaptured courts and doctrinal writings of pro-autocracy academics in these countriescan be viewed as merely performative acts (as opposed to reasons). While theycan be analyzed as empirical material for studying the phenomenon of rule-of-lawerosion, they are unsuitable for use in thorough doctrinal, systematic-conceptuallegal work. Both judicial case-law and doctrinal scholarship feed on coherence, butautocratic constitutional regimes are by their very nature ad hoc and arbitrary.1)Aterminological remark for conceptual clarity: by autocracy or autocratic I mean inthe present contribution the lack of the rule of law. For the relationship betweendemocracy and the rule of law during erosion, see in more detail András Jakab,What Can Constitutional Law Do Against the Erosion of Democracy and the Ruleof Law? On the Interconnectedness of the Protection of Democracy and the Rule ofLaw. Max Planck Institute for Comparative Public Law & International Law (MPIL)Research Paper No. 2019-15. Available at SSRN (Constitutional Studies 6. 2020.5-34).The picture, of course, can be differentiated: certain parts of the legal system canremain relatively intact (e.g., tort law or company law, which are politically lessrelevant), keeping such doctrinal-legal conceptual analyses still meaningful – while- 1 -others (especially constitutional law, or just politically sensitive specific areas ofconstitutional law) decline. And the situation can also change from year to year:when the constitutional takeover has not yet completed, it can be entirely legitimateto try to halt it by means of thorough doctrinal-conceptual analysis (e.g. in the formof a commentary, a case-note or an amicus curiae). Once the takeover is complete,however, the same writings can acquire an unintended legitimizing function. Thefrontiers between the two stages are in real life not always clear or become clearretrospectively (and the question of degree can best be answered with the helpof various rule-of-law indices), but in order to understand the methodological (andmoral) dilemma in its extremity, it is useful to simplify here.Throughout the legal history of 19th and 20th centuries, doctrinal-conceptualanalysis received ever new boosts whenever the rule of law was extended to anew area. Judicial review of administrative acts resulted in more sophisticateddoctrinal-conceptual administrative law, and the spread of constitutional courts(or supreme courts with similar competences) resulted in more sophisticatedVerfassungsdogmatik. The 19th century development of the rule of law in legal realityenabled analytical jurisprudence (John Austin, Felix Somló) and doctrinal legalpositivism in the area of public law (Paul Laband, Otto Mayer, Edmund Bernatzik,Ern# Nagy): concentrating on doctrinal-conceptual, instead of contextual analysisbecame a meaningful and plausible methodological position. With the currentlyongoing constitutional erosion of the rule of law, we observe changes in the oppositedirection in autocratizing countries. Methodological and theoretical approaches tolaw presuppose specific types of legal regimes. Being purely positivist-doctrinalist isone of the meaningful methodological positions in countries where the rule of law isin excellent shape; but staying exclusively positivist-doctrinalist when dealing withthe constitutional law of a hybrid regime is autistic and/or cynical.The Methodological Challenge of Autocratization forScholarly WritingIn case of rule-of-law erosion, a key problem is the slow demise of the normativeforce of constitutional law, i.e. the gradually growing chasm between constitutionallaw and constitutional reality. In such regimes, amendments to formal legal actshave little to say about what and how things will change. If we do not want to remainblind to erosion, besides considering the formal rules, we must also examine the defacto conduct of both officials and citizens, and the narrative accompanying it (thelatter includes the social mentality and the political rhetoric regarding constitutionalinstitutions). If in our academic work we are interested in describing and explainingerosion, we should adjust methodologically to the partially non-legal nature oferosion.Especially during the advanced stage of autocratization (when the erosion hasalready been established many times, both in scholarship and in various reports ofinternational organizations), it is better to adjust our methods. Traditional doctrinal-legal analysis will not tell you anything new anyway (except that autocratic regimes- 2 -can be skillful and creative with nasty legal tricks), and you will look like a fool fortaking the pretended legalism of the regime seriously, yet again another time.Therefore, the currently ongoing autocratization does not simply deliver a new set ofquestions for constitutional lawyers, but it also motivates us to rethink the methodsof constitutional scholarship. Purely doctrinal-conceptual analyses are likely tobecome less (in certain countries perhaps much less) attractive than before. Andinstitutionalist analyses combining legal doctrinal-conceptual and social sciencemethods are likely to gain further popularity in the future.PS. The dilemmas are somewhat different, if the issue is not simply to understandand explain autocratization for the scholarly community (wherever you are, maybeeven at a foreign university in a stabile constitutional democracy), but if you have toteach constitutional law at a university which is geographically located in an actualautocratizing country. In the latter case, difficult moral and practical choices have tobe made every day, but that should be the topic of another blog entry.References• 1. A terminological remark for conceptual clarity: by autocracy or autocratic Imean in the present contribution the lack of the rule of law. For the relationshipbetween democracy and the rule of law during erosion, see in more detailAndrás Jakab, What Can Constitutional Law Do Against the Erosion ofDemocracy and the Rule of Law? On the Interconnectedness of the Protectionof Democracy and the Rule of Law. Max Planck Institute for Comparative PublicLaw & International Law (MPIL) Research Paper No. 2019-15. Available atSSRN (Constitutional Studies 6. 2020. 5-34).- 3 -

Bringing a Hammer to the Chess Board

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Bringing a Hammer to the Chess Board

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