Jan Petrov – (De-)judicialization of politics in the era of populism: lessons from Central and Eastern Europe

Abstract

Law and politics scholarship has been preoccupied with judicialization of politics, often treated as a linear, intensifying trend. This article, however, argues that the rise of populism, particularly East-Central European authoritarian populism, has brought new dialectical dynamics to the judicialization narrative. I examine the relationship between the populist rule and the judicialized structure of governance, and revisit the judicialization theories by providing a conceptual toolkit for analysing the populist backlash against judicialization. The populist ideology suggests that populists should seek de-judicialization. Analysis of Hungarian and Polish cases, however, shows that populists combine different short- and long-term strategies seeking de-judicialization of politics and extreme politicisation of the judiciary, subject to the scope of populists’ power and developments in time. Consequently, constitutional courts captured by populists are not always muted. They can be actively exploited for advancing the government’s agenda. These measures affect the judicialized triadic structure of governance, normally consisting of the government, the opposition, and an impartial constitutional court. Depending on the techniques employed, the populist court-curbing can lead to a partial return to the dyadic structure, deformation of the triadic structure, and, in the long-term, to the ‘charade’ triadic structure turning the constitutional court into an inferior actor.