The dual state of judiciary in Hungary and Poland

Hollowing out of the independent judiciary is at the center of systematic rule of law violations of illiberal regimes. In Hungary and Poland, courts and judges had been subject to political pressure, tactics of institutional paralysis, and personnel removal as ruling parties have attempted judicial capture. Incumbents change the rules of the game, take over institutions deciding on the legality of elections or the persecution of opponents. Some of the judges have resisted, others succumbed to political pressure and still others have built their careers in the autocratizing state. To better understand these autocratic dynamics within the judiciary, we adopt the concept of the dual state (Fraenkel) that postulates that authoritarian changes do not penetrate institutions all at once. Rather, there is a dynamic of capture and resistance between the political and the independent parts of the judiciary. We argue that in both countries a dual state of the judiciary has developed. The duality within the judicial system of illiberal regimes translates into the bifurcation of the normative state vs. the prerogative state, which however does not lead to parallel legal orders. Instead, within the same system, two governmental principles compete: the normative state follows laws and resists the politicization of judicial decision-making, whereas the prerogative state applies authoritarian logic and instrumentalizes law to meet political expectations. The concept of dual state of judiciary helps in exploring rule of law violations that instead of judicially securing politics, politicize the judiciary. We show that while the normative state of the judiciary is almost extinct in Hungary and persists mainly with the help of the EU, Poland’s new government has embarked on dismantling the prerogative state of the judiciary, a complex process that might take longer than expected.