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Judges under Stress JuS - the Breaking Point of Judicial Institutions

How do rulers seek judicial compliance with authoritarian measures, how do judges react to such measures, and what are the conditions under which an independent judiciary breaks down? We will adress these questions from the perspective of institutional theory, looking at the experiences of Central and Eastern European states under communist rule. We will compare these experiences with experiences from other countries.

The project will look at how rulers seek judicial compliance with authoritarian measures, how judges react to such measures, and the conditions under which an independent judiciary breaks down.

Photo: Colourbox.com

About the Project

The Authoritarian Challenge

There are courts in Europe that are facing powerful political forces calling for illiberal measures. It is to be expected that the higher degrees of social concern and conflict that we experience in Europe today will challenge basic elements of the rule of law and thus put higher demands on the judiciary, both in the post-communist countries and in countries of Western Europe. The project will look at how rulers seek judicial compliance with authoritarian measures, how judges react to such measures, and the conditions under which an independent judiciary breaks down. It will explore how the conditions of an independent judiciary differ in countries with different legal traditions. This will be studied by surveying differences in the fascist and communist approaches to law. Based on a historical comparison of different European countries, we will explore whether variances between different countries can be can be explained by differences in the long historical traditions of their legal institutions.

Multidisciplinary approach

The project is multidisciplinary in the intersection between law, legal theory, legal history and sociology of law. It will employ the normal tools of legal analysis on the legal material of the time of communism in the selected country studies. It will also employ empirical studies by searching for evidence of the courts being used as mere mock trials in political cases and for evidence of rulings in political cases where judges acted independently and did not return the verdicts expected by the regime. We will search for and examine laws delimiting the jurisdiction of the courts in relation to security forces and detention regimes and to what extent such cases were brought to the courts and how they were dealt with. We will also see to what extent the operations of security forces and political police had a formal legal basis, and to what extent they operated in contradiction to formal legal requirements. We will study this by examining legal reasoning in court decisions and legal doctrine on issues and laws that are particularly oppressive in nature or questionable from the point of view of national and international standards.

Organisation of the Project

The project is located at the Department of Private Law at the Faculty of Law, University of Oslo, with professor Hans Petter Graver as project manager. The law faculty has vibrant and strong groups of researchers doing works on courts and the judiciary, in legal sociology and legal history. An aim of the project is to build a group with a core of researchers from the faculty with the participation of researchers at other institutions abroad. In addition to the project manager they consist of professor Christoffer Eriksen and Malcolm Langford at the Department of public law and professor Peter Scharff Smith at the Department of Criminology and Sociology of Law. Graver an Scharff Smith cooperate in the newly established course at the faculty on Law, Ideology and Human Rights Violations. The group will be joined by Dr Magdalena Konopacka, University of Gdansk who will spend one year in Oslo as a visiting researcher, and by two post docs and one PhD-students.

The project has established contacts with colleagues with high academic knowledge and experience in the study of law and legal institutions under authoritarian conditions in Europe. These are Joxerramon Bengoetxea, Universidad del País Vasco (UPV/EHU); Oñati International Institute for the Sociology of Law, Mátyás Bencze, Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies, Cosmin Cercel, University of Nottingham, David Fraser, University of Nottingham, Jaan Ginter, University of Taartu, Ole Hammerslev, University of Southern Denmark, Tomasz Tadeusz Koncewicz, University of Gdansk,  David Kosar, Masaryk University, Agnes Kovacs Sofie Papaefthymiou, University of Lyon, Herlinde Pauer Studer, University of Vienna, Inger Johanne Sand, University of Oslo, Anna Wallermann, University of Gothenburg and Jerzy Zajadło, University of Gdansk. Together they will form an international network, contribute in the supervision of the young researchers and in seminars and discussions. Efforts will be made to expand the network, in particular with academics from institutions in the CEECs.

See the project description.

The project will run from 2018 through 2022.

Financing

The Project is financed by FRIPRO-funding from the Research Council of Norway and the University of Oslo.

 

Publications

  • Graver, Hans Petter (2018). Dommeren som likte roser. Lov og Rett.  ISSN 0024-6980.  s 88- 111
  • Graver, Hans Petter (2018). Judicial Independence Under Authoritarian Rule: An Institutional Approach to the Legal Tradition of the West. Hague Journal on the Rule of Law.  ISSN 1876-4045. . doi: 10.1007/s40803-018-0071-8 Fulltekst i vitenarkiv.
  • Graver, Hans Petter (2017). ?Por que Adolf Hitler perdono a los jueces?. el Cronista del Estado Social y Democratio de Derecho.  ISSN 1889-0016.  (68), s 4- 15
  • Graver, Hans Petter (2016). Judging without Impunity: On the Criminal Responsibility of Authoritarian Judges. Bergen Journal of Criminal Law & Criminal Justice.  ISSN 1894-4183.  4(1), s 125- 149 . doi: http://dx.doi.org/10.15845/bjclcj.v4i1.1029
  • Graver, Hans Petter (2015). Dommernes krig Den tyske okkupasjonen 1940-1945 og den norske rettsstaten. Pax Forlag.  ISBN 9788253038087.  302 s.
  • Graver, Hans Petter (2015). Judges Against Justice On Judges When the Rule of Law is Under Attack. Springer.  ISBN 978-3-662-44292-0.  301 s.
  • Graver, Hans Petter (2014). Judicial Independence and Judicial Responsibility, In Nils A. Engstad; Astrid Lærdal Frøseth & Bård Tønder (ed.),  The independence of judges.  Eleven International Publishing.  ISBN 978-94-6236-116-4.  21.  s 309 - 232
  • Graver, Hans Petter (2014). Richter in Diktaturen: Taten und strafrechtliche Aufarbeitung im internationalen Vergleich. myops - Berichte aus der Welt des Rechts.  ISSN 1865-2301.  8(22), s 5- 16
  • Graver, Hans Petter (2014). The Immoral Choice - How Judges Participate in the Transformation of Rule of Law to Legal Evil, In Carl Baudenbacher; Phillip Speitler; Bryndís Pálmarsdóttir & EFTA Court EFTA Court (ed.),  The EEA and the EFTA Court : Decentred Integration.  Hart Publishing Ltd.  ISBN 978-1-84946-626-4.  Chapter 6.  s 63 - 80
Tags: rule of law, judges, judicial independence, authoritarian law, legal politics, institutions, institutional theory
Published Feb. 5, 2018 10:58 AM - Last modified Mar. 23, 2018 8:33 AM