The Judiciary in Illiberal States

Abstract

The Article deals with the actual functioning of the judicial power and the limits of its independence facing an illiberal or authoritarian state. The Article offers a skeptical analysis of the past and especially of the judiciary's future in Central Europe, with a primary focus on Czechia and Slovakia. After a brief excursion into the times before the installment of communist regimes in the late 1940s, attention shifts to the development of the judiciary during the three decades after the fall of communist rule. In this context, the Article deals with different models of administration of the judiciary and shows how they can function in normal democracy and under the conditions of emerging authoritarianism. It also characterizes different perspectives on the judiciary in common law and continental law and posits different capacities of judges to resist authoritarians in various legal cultures. Finally, it sketches future prospects and attempts to define the typology of judiciary models in authoritarian and totalitarian states.