Judicial freedom of expression in times of a politico-legal culture crisis

• Department of Law

The EUI Constitutionalism and Politics Working Group hosts a presentation on judicial freedom of expression by Dr Paweł Jabłoński, Professor Przemysław Kaczmarek, and Mateusz Wojtanowski (Wrocław University).

Abstract

Our paper explores the judge’s freedom of expression under a crisis of politico-legal culture. To discuss it, we adopt a model of four factors delimiting the field of juridical practice: politico-legal culture, the text of law, juridical culture and individual axiological sense. Politico-legal culture determines the axiological framework that gives coherence to the entire structure. The text of law denotes legal acts. Juridical culture comprises knowledge and skills developed by the juristic community and underlies the correct application of law. The last factor concerns value judgments made by judges. 

We assume that, in this sequence, the preceding delimiting factor forms primary facticity for the following ones. Put otherwise, each delimiting factor operates within the scope determined by the prior ones and specifies what they have not settled (relationship of complementarity). A latter delimiting factor may exceptionally provide arguments for correcting the pronouncements based on the former factors (relationship of correction). 

This lens serves us to discuss the judge's expression as combined with a more fundamental issue: that of who and what a judge should be today. Citing negative points of reference, we argue for the idea of a judge as an active participant in the public debate. We highlight judges' four responsibilities: application of law, repair of law, protection of law and the social education of the public. We believe that this model of the judge's role results both from the legal rights of people in this function and from the needs of democratic citizen society, particularly in times of a crisis of politico-legal culture. 

In our view, two processes coalesce in this crisis. One is increasing anti-liberalism, which has powerfully affected the political orders of East and Central European countries. Another is a sudden restructuring of social communication.