Constitutionalization
and the Political Fighting through Litigation
by Béla Pokol
Complicated relations
in modern society cannot be regulated by law unless they are separated into
several intrinsic layers. If we drop the textual approach to law, then we can
have an unbiased view of the system of concept categories of each branch of law
under the layer of the text appearing on the surface which constitutes the
dogmatic layer of law; in addition to these, judicial case law - high court
precedents, judicial practices making the open usage of acts and orders more
accurate – represents the third layer of law. The relations of these three
layers of law, their proportions to each other are different in each legal
system, but to a certain extent all three have been present in modern legal
systems of this last century. The appearance of constitutional jurisdiction,
which subsequent to 19th century beginnings in America has spread in
several European countries since the end of the 1940’s and become a routine
procedure after the changes in 1989 in Central and Eastern European countries,
is a new product of development. Compared to dogmatically chiselled traditional
administration of justice made more accurate by judicial case law, this new
layer of law, which originally appeared in the form of human rights as the
collection of ideological/political requirements outside legal systems in
operation, is characterised by highly different features. One such difference
is that the normative content of constitutional rights and freedoms and
fundamental principles is more abstract than the rules of traditional fields of
law. The other difference is due to the fact that relations between particular
rights are mostly irreconcilably strained, and a certain right can be enforced
only at the expense of another right or principle. These features did not cause
any problems while people had to fight with them as ideal requirements, setting
human rights against actual conditions, for the transformation of prevalent
conditions. Judicial decisions based on them as constitutional rights and
freedoms used for being applied in cases, however, often lead to legal
uncertainty.
1. Three dimensions
of constitutionalization
This particular problem of the layer of
constitutional rights and freedoms has not been serious for predictable
administration of justice even while its effect has been exerted on the
legislator and other lawmakers. This has represented the prime rule during the
recent half century in the countries where the institution of constitutional
court has appeared. Constitutional rights and freedoms and fundamental
principles have guided the alternative choice of the legislator and pushed the
content of provisions of law in drafting acts and orders in the direction where
the abstract instructions of fundamental rights and principles appear in them
more properly. At this point, it is at most the question of democracy that is
raised by the too wide power of judicial review exercised by the constitutional
court. For the expression of the empirical will of the people in parliament
formulated by the voting of millions is forced to the background on the grounds
of the decision of a few constitutional court justices. In spite of the problem
of democracy fundamental rights, which include overall aspects of justness, can
reduce the amplitudes of the empirical will of the people based on short term
and rather emotional moods of the masses. Making a somewhat aristocratic
remark, it can be said that ‘the radically subversive’ element built into mass
democracy can be tamed by the
constitutional court justices, who deliberate and make decisions in adherence
to the standards of upper classes. Problems actually arise if this
decision-making forum gets permanently and globally in conflict with
legislature based on the empirical will of the people and the authoritative
political elite.
It constitutes a new
dimension when constitutional rights and freedoms go beyond determining the
legislation and begin to exert directly determining pressure towards the
micro-processes of law and judicial decisions in cases as well. In addition to
these two dimensions, constitutionalization may touch jurisprudence and
dogmatic activity: by connecting internal issues of various branches of law and
dogmatic constructions of law to constitutional rights and fundamental
principles; and by describing the dogmatic system of various branches of law
more or less as being deduced from fundamental rights. Subsequently, a specific
branch of law will appear as ‘a constitutional branch of law’ – ‘constitutional
criminal law’, ‘constitutional taxation law’, ‘constitutional labour law’, etc.
– and once this has been accepted by the lawyers in the given branch, then, in
addition to law politics criticism alongside lawmaking, ‘the constitutional
rights of the branch of law’ will be considered as the basis of interpretation
of the rules of that branch by legislators as well. The constitutionalized
jurisprudence of various branches of law may thus move in two, different
directions: towards legislation they may appear as a new law politics
assessment system, now condemning current legal conditions for lagging behind
constitutionalized fundamental rights, and towards law enforcement as the
supporters of judicial law enforcement with a new viewpoint driving law
interpretation towards the constitutional rights under branches of law.
Out of the three
dimensions of constitutionalization, only with respect to the
constitutionalization of judicial proceedings is my intention in this study to
examine the operation of the layer of fundamental rights, and to expound the
problems that arise in this field. After that, in the final part of the study I
shall describe the phenomenon of ‘political fighting through litigation’, which
arise from these developments. By breaking elements up into three dimensions it
is possible to assess the effect exerted by the layer of constitutional rights
and freedoms on each layer of the legal system more accurately than by
describing the constitutionalization of the entire legal system without any
differentiation made. Thus, for example, at the comparative law conference arranged
in 1998 in Bristol the papers prepared on this subject focused on ‘the
constitutionalization of the legal order’ in summary, while they commented the
current state of constitutional court’s judicial review of the legislation
in various countries (see Koch 1998; Poplawska 1998). The subtle treatment of
the subject allows that the effects of constitutionalization can be assessed in
each dimension separately, and that the negative or positive assessment of one
dimension should not influence the assessment made in the other dimension.
If the layer of
fundamental rights go beyond the judicial review of legislation and begin to
influence judicial decisions in cases, then the influence can be examined from
two different aspects. Firstly, regarding that the judge can decide the case
by taking into consideration, in addition to the relevant legal rules,
constitutional rights and freedoms. That is, in this event, constitutional
rights and freedoms exert their effect on the judicial decision not only
through drafting laws to be enforced by the judge but in addition to/instead of
that they directly appear in the formation of decisions. Secondly, regarding
that it exerts an effect towards the constitutionalization of the legal order
when participation in the litigation is disconnected from the state of being
personally concerned and more comprehensive groups, associations can enter the
judicial proceedings for whom it is not the specific subject of the litigation
that counts but the possibility to fight for a definite outcome of the
litigation using it as means of shaping an overall issue. Let us look at these
two aspects of constitutionalization, possibly called the substantive law and
procedural law side of this process respectively, and the questions related
them in more detail.
2.1 The substantive
law aspect of constitutionalization
While in most of the
countries where the institution of constitutional jurisdiction has been
established, it has been confined to the judicial review of legislation,
subsequently constitutional rights and freedoms and fundamental principles have
not been granted a direct role in the micro-processes of law; in Germany and
the United States since the mid 1950’s attempts have been made in this
direction. In Germany this problem area has been called ‘the horizontal’ effect
of fundamental rights or, looking at it from another aspect, ‘the tertiary
direction effect’ (Drittwirkung); in the United Sates since the 1960’s when the
theoretical treatment of the issues concerning new legal developments
commenced, studies on the subject have been prepared under the headword: ‘the
constitutionalization’ of solving problems in the administration of justice and
society. The problems arising here are grasped in different width by the two
thematic interpretations, and the wider, American thematic interpretation has
corresponded to the actual situation that the constitutionalization of law
enforcement has been performed on a wider scale and touching the operation of
law more profoundly in the U.S. than in Germany.
In Germany the
Constitution declares fundamental rights to be directly enforceable rights, and
since the 1950’s during the course of making judicial decisions the question
has arisen what role constitutional rights and freedoms that seem relevant in
the given case may have alongside applicable legal provisions (Alexy 1985).
Logically, in this respect, three positions are possible. The first can be that
the judge shall not take fundamental rights into consideration because the
legislator has already been controlled and determined either by them or the
constitutional court decisions interpreting them. In this direction the role of
fundamental rights is somewhat stronger when the judge needs to take into
consideration the guiding of the relevant fundamental rights and constitutional
court decisions basically in formulating his decisions tied to the relevant
provisions of law, but also in his interpretation work because of the openness
of the provisions of law, and needs to implement his deliberation in view of
these. Finally, fundamental rights will attain the strongest position in the
forming of the judge’s decision when the judge can (and shall) both refer to
fundamental rights in the interpretation and strike the applicable
provisions of law down and base his decision entirely on constitutional
provisions.
These three positions
emerged in German law literature from the beginning of the 1950’s in the analysis
of the possible effects exerted by constitutional rights and freedoms towards
direct judicial decision; and the problem was called ‘the horizontal effect’ of
fundamental rights in view of the fact that fundamental rights had originally
protected the individual ‘in vertical direction’ against the state and the
overall community. And now their effect in the interrelations, i.e. in the
horizontal relations, between citizens was put into focus. The German Federal
Constitutional Court thoroughly considered its decision made on the issue, and
after the Federal Labour Court had ignored the provisions of labour law in a
labour lawsuit and decided the case directly on the grounds of the
Constitution, and a huge debate evolved in the literature on the consequences
of this revolution in law enforcement, the Constitutional Court took the
position that fundamental rights might exert only indirect effect on judicial
decision, and judicial decision might be based on them only to the extent of
analysing the openness of the provisions of law, but laws should not be
ignored. If a judge deems that a particular provision of law is in conflict
with one of the constitutional rights and freedoms, then he can suspend his
proceedings, and may appeal to the Constitutional Court requesting the
examination of that particular provision of law. He himself, however, shall not
ignore it.
Germans have been
left alone with even this middle-of-the-road position of theirs because
Austrians and Italians, who have had constitutional jurisdiction since as early
as the 1950’s, having examined the matter have decided that they do not approve
of the horizontal role of fundamental rights even to such an extent. Also, in
Germany, in spite of the declarative recognition, the inclusion of constitutional
rights and freedoms into judicial decisions has remained moderate even in such
an indirect function.
Constitutionalization
has been performed on a much wider scale in the United Sates, and it has
exerted a much broader effect on both the operations of the legal order and
political life. Subsequently, since the 1970’s a new tendency has begun to
replace the old one, first by stopping further constitutionalization, then by a
resolute reversal from the beginning of the 1990’s (see Epp 1998).
In the United States
the constitutionalization of judicial proceedings was greatly connected to the
different dominance of political forces on member state and federal level and
the opposition of the two levels for that very reason, which eventually
resulted in the Civil War in the 1860’s. The federal government, the federal
legislature and the separate federal court system established on it
traditionally constituted the depositories of the central formation of will in
the United States just becoming uniform against member state laws and member
state authorities; and the continuous extension of federal competencies during
the recent one hundred years has been accomplished by the more and more
broadening interpretation of the Constitution by the federal courts, and by the
Federal Supreme Court, in the first place. One aspect of this has been (in
addition to the widening legislative power of the federal Congress to the
account of member state legislatures) the inclusion of constitutional
provisions pertaining to federal issues into judicial law enforcement, and
through that the striking down of member state laws (and member state courts
ordered to enforce them). To make this understandable it might be worth
referring to the legal case from the beginning of the 1980’s when a college in
the U.S. entered a two-year contract with a PE teacher, but gave him notice
after a year. The PE teacher intended to argue with the lawfulness of the
notice not in compliance with labour rules, which would have fallen under the
jurisdiction of the member state court, but by interpreting the loss of his
salary as loss of property and basing his claim on the provision of the
Constitution that sets forth that “no person shall be deprived of property
without due process of law”. This basis of litigation transferred the case into
the competence of the federal court, and if the judges were inclined to
interpret property in such terms, then a considerable part of labour cases
would be executed as an action of infringement of a constitutional right and redress
thereof. This case, however, happened to be allocated to Richard Posner, Chief
Justice of the Chicago Federal Court of Appeal, who being an opponent of
constitutionalization rejected the claim, and indicated to the PE teacher that
in a member state court judgment would be made pursuant to labour rules
probably in his favour (see Cohen 1985:1117-1118). What counts here is that
litigation is doubled by creating the option of constitutionalized litigation,
and the plaintiff has the option of either prosecuting a constitutional lawsuit
or trying to solve his or her problem pursuant to simple laws.
This tendency reached
its peak by the mid 1970’s and in federal courts a parallel
‘constitutionalized’ administration of justice evolved in addition to traditional
techniques of litigation. The opposition evolving among lawyers and in courts
made public opinion and politics aware of the emerging problems, and especially
the law politicians of the Republican political side began to claim, more and
more dramatically, the necessity of turning this process back. President Reagan
put the issue in his election program at the beginning of the 1980’s asserting
that in the event that he was elected President, he would attempt to appoint
federal justices who are against ‘the constitutionalization’ of judicial
decisions. After he had been elected, his administration of justice managed to
break through in the 1980’s and once the federal judiciary had been replaced,
constitutionalization ceased to be pursued in judicial proceedings to such a
great extent. Eventually, through filling vacancies with the nine justices
coming in turn in the federal supreme judicial forum by the beginning of the
1990’s, it was possible to turn the majority of justices towards stopping
constitutionalization. Against the line of ‘constitutionalization’ that began
in 1953 with Chief Justice Earl Warren, and continued with Hugo Black, then
with William J. Brennan, William O. Douglas, Abe Fortas, the camp for reversing
the process was represented by Felix Frankfurter, John M. Harlan, William H.
Rehnquist, Sandra Day’O Cooner, Antonin Scalia, who fought a hopeless struggle
with them in the beginning, and who have constituted the majority of the
supreme judicial forum in America in recent years. Among law scholars Ronald
Dworkins has to be considered the arch supporter of the constitutionalization
trend, while it was Alexander M. Bickel who began to fight to cut it back in
the 1960’s, then since the 1970’s Robert Bork and since the 1980’s Antonin
Scalia have written important works to carry on with the issue. (Eventually
Scalia was appointed the associate justice of the Federal Supreme Court in the
middle of the 1980’s, but Robert Bork’s nomination failed because of the
political and media strength of the opponents who acted uniformly.)
Compared to the
German ‘horizontal effect’, the constitutionalization of law enforcement in the
United States was thus accomplished with a more penetrating force for a while.
Constitutional rights and freedoms and supreme court decisions interpreting
them in the U.S. are made part of law interpretation just like in Germany, but
through the independent course of constitutional litigation it is also possible
to strike down laws the way referred to above. A broad interpretation of constitutional
rights and freedoms, and the deduction of numerous normative points of
reference from constitutional fundamental principles, are instrumental in
completely striking down simple laws and the constructions of the legal
dogmatic behind them; and judicial decisions in cases can be made on the
grounds of constitutional rights and the points of reference applied in the
literature of rights that elaborate on them, instead of provisions of law made
more accurate by legal dogmatics (with regard to family law in the U.S. see
Schneider 1988:79-121). In terms of legal techniques it might not be out of the
question that a new kind of predictability will evolve after a longer period,
although because of the multitudes of necessary changes it is unforeseeable in
what way this could happen, if it is possible at all; nevertheless, after a
twenty years period of this trend the mainstream of American law has shifted
towards reversing it.
2.2 The procedural
law aspect of constitutionalization
In the United States,
alongside the substantive law aspect of constitutionalization, from the 1960’s
developments on the procedural side began to shift traditional administration
of justice to the domain of constitutional law/public law for a while. The core
of this was that individual litigation was replaced by mass action, which
extremely enhanced the importance of judicial proceedings in view of conducting
the struggles of wider groups of society. And the execution of mass action
pursuant to constitutional rights and freedoms actually created the alternative
for groups of society of either organising themselves into parties and
attempting to attain their goals in the legislation through modifying laws, or
fighting for them through judicial proceedings thus changed.
Traditional
litigation was shifted into this direction along two, intertwined tracks of
development from the beginning of the 1960’s. One of them represented the
evolution of ‘public interest litigation’ or ‘public law litigation’, and the
other that of ‘class action’.
(Public law
litigation) Entering a traditional, civil action, or joining an
ongoing action is possible only by a person whose interest protected by law is
directly affected by the case in such action. The outcome of a massive court
action often affects the status of other people in similar situation,
especially when judicial precedent law plays a powerful role in the legal
system of the given country. In this event, in any subsequent litigation this
decision will be taken into consideration as precedent on behalf of the persons
in similar situation; subsequently, for the persons who are in a situation
similar to the individual litigant the outcome of the action is important. It
apparently goes back to the fact that in the United Sates attempts have been
made by outside parties to join judicial proceedings since the end of the last
century. The first form of this effort was the ‘amicus curiae brief’ (see
Kristlov 1963). This consisted of the description of a lawyer’s position
written by some respectable lawyer or law professor in order ‘to help’ to
decide the given case. These letters expounded arguments, regulations applied
in other countries which urged the judges who decided the case to proceed into
a given direction. This activity is usually pursued by respectable lawyers,
government officials, experts of large companies prior to superior court
decisions of general importance, when the outcome of the case is meaningful for
them. One version of the amicus curiae brief is the so-called Brandeis-brief,
which expounds legal arguments and changes in social facts for the judges who
decide cases, and attempts to attain secession from previous relevant
precedents. Louis Brandeis, who later became the member of the supreme judicial
forum, wrote his example setting letter in an important case in 1908, which,
after a two page traditional legal argument, outlined in a 110 page study
social changes calling for new decisions to be made by judges against old
precedents. In the midst of the euphoria of transforming law into ‘sociological
jurisprudence’ that drew upon social sciences this kind of letter set a pattern
for ‘social engineer’ lawyers for long decades.
This antecedent makes
the evolution of public law litigation from the 1960’s understandable. At that
time a modification was made in the rules of court, which allowed that anyone
whose interest should be affected by the outcome of an ongoing action might
join such action, provided that the party in the action in similar situation
should not be able to defend the given interest. The judge was obliged to
permit the joining of the action; and another clause allowed that the
interested party might join the action, even if the claimed interest was
properly defended, when an overall fact or legal issue was concerned in the
action. The judge, however, had the right of deliberation whether to permit the
joining of the action (Vreeland 1990:279-310). Since this modification in the
rules of court intervention has taken place in multitudes of lawsuits, and now
judicial decision may be influenced not only from outside with an amicus curiae
brief, or in the form of a Brandeis-brief by overall interest groups,
associations but also by the parties involved in the lawsuit.
In such event,
however, the action will be essentially transformed, and the emphasis is
shifted from an individual’s interest to win the action to the enforcement of
an overall social group’s long term interest. Subsequently, the lawsuit is
executed for the sake of winning a permanently better legal position with the
participation of the unions of the relevant social group. This change in
character will make the courtroom similar rather to the plenary session of a
legislative body, with huge media publicity, and not the place where neutral
lawyer’s argumentation takes place. Litigation appears to be an alternative for
political interest groups to attempting to fight for the modification of law as
a lobby or a political party in parliament (see Chayes 1982). Choosing the
option of political fighting through public law litigation is especially
advantageous for ethnic groups or minorities because they can enforce their
will with more difficulty in the majority legislature. A cutting back attempted
in 1984 was justified by a preparatory subcommittee of Congress by stating that
“The members of a particular race or sex can easily set up a group, given the
inclination of the federal judges to acknowledge the litigation right of social
groups defined in terms of sociology. Abstract rights and freedoms constitute a
basis for such groups, which makes rights litigation similar rather to
legislation than traditional lawsuit between class litigants” (quoted by
Feinberg 1984:272). The golden age of public law litigation was in the 1960’s
but even in the period between 1986 and 1989 171 such cases can be found when
examining actions executed in federal courts, in spite of the fact that by then
the staff of federal judiciary had been mostly replaced, and justices
considered the possibilities for joining lawsuits stricter when granting
permission; and, consequently, the transformation of lawsuits into public law
litigation was to a certain extent forced back.
When analysing the
American impact in this respect on Western European countries, it can be seen
that the appearance of public law litigation has taken place only partially.
Because here it usually falls within the public prosecutor’s competence to join
a lawsuit if the interest of the litigant is not properly represented and bears
an overall social significance (for a comparative analysis of this see: Feldman
1992). In spite of this, certain developments have already begun with a view to
attaining that the law of the European Union shall be enforced through judicial
proceedings against reluctant domestic laws by applying to the European Court
of Justice regarding specific cases if the relevant social group has not been
able to enforce it because of the resistance of domestic legislature (see
Feldman 1992). In the form of a germ it is the same as what has resulted in
‘the constitutionalization’ of law enforcement in the fight between federal and
member state political forces in the United Sates during the recent 40 years.
In Europe quite often it is through the extension of the jurisdiction of the
European Court of Justice based on the broadening interpretation of the Union’s
Treaty that member state legislatures are more strongly subject to the Union.
Currently, however, on the level of the Union there is no fundamental rights
charter (the European Court of Human Rights applies the European Human Rights
Treaty regarding both the Union and each member state of the European
Commission) and therefore ‘the pushing forward’ of the formation of will in
Brussels has not been able to proceed by applying fundamental rights in a wider
sense. Thus, although the status of the relation between the European Union and
its members states is similar in every respect to the situation in the U.S. at
the end of the 19th and the beginning of the 20th
century, and there this situation led to the (federal) constitutionalization of
law enforcement, this cannot generate similar phenomena among the member states
of the European Union. But if a fundamental rights charter with proper legal
force were after all established in the European Union, and attempts are being
made to attain this goal by some political groups, then the creation of the
United States of Europe would be supposedly accelerated through that channel as
well.
With regard to public
law litigation reference should be made also to the phenomenon of strategic
litigation. This phenomenon evolves due to the existence of precedent law
in the countries where precedent law plays a larger than usual role, and
because of that in the United States public law litigation assumes the nature
of strategic litigation. The point is that strong interest groups are
interested not only in winning a particular case, they litigate not primarily
to win a particular action but for the sake of enforcing a decision in a
leading case in favour of them. One of the consequences of this is that if
prospects in the particular lawsuit are unfavourable, then interest groups
attempt in any way to come to a agreement with the opposing party, possibly by
accepting worse conditions than the ones that they could after all obtain in
the action, just to avoid that a sentence is made, so that no legal ‘trace’ of
the given case should remain. On the contrary, if conditions for winning are
good, then under no circumstances are they willing to come to an agreement
because the prime aim is to attain precedent in the given case (see
Tushnet/Schneider/Kovner 1988:975).
(Class action) This form
has evolved primarily in mass claims for damages when due to a large company’s
responsibility for particular products or because of an environment polluting event
crowds of several thousand or ten thousand people become affected. In this
event those affected, forming a litigation group, enter the action as a quasi
interest group so that the judge attain the payment of damages by fighting. But
the spreading of ‘class action’ has transferred this form of litigation to
numerous other fields, and measures of public administration agencies, school
authorities, etc. are often attacked in this form. And through this spreading,
class action often gets fused with public law litigation (see Elhauge
1991:72-77). In this event, a single judicial decision decides the case of ten
thousands of people; what is more there are tendencies that on condition that
anyone shall prove that he or she shall ‘rank among the class’, that is, shall
be in a situation identical with the situation the parties involved in the
action were in, a judicial certification may be issued to such person regarding
the judgment of his or her claim without the need of such person formally
taking part in the action because it is apparent that the judge – as any
lawmaker – decides the case of huge social masses, and not the case of a
particular individual.
3. Attempts made at
constitutionalizing law enforcement in Hungary
Right from the outset
it should be noted that in Hungarian judicial law enforcement no major shifts
have taken place in the direction of constitutionalization; nevertheless,
recently there have been attempts that indicate the appearance of concepts with
an impact in this direction. In the description of the state of affairs in
Hungary the analysis of these attempts is again worth splitting into two parts,
and after exploring the substantive law dimension of constitutionalization the
realm of procedural law needs to be looked at separately.
3.1 The substantive
law aspect of constitutionalization.
The first point that
should be made in the analysis of the state of affairs in Hungary is that the
Constitutional Court created in 1989 by the change of regime was vested with an
enormous power to review legislation, and the tribunal itself further augmented
this power, but did not push forward to review judicial proceedings and
decisions. (In adherence to the model evolved in Western Europe, in Hungary the
Constitutional Court is operated as a separately organised body and it is not
the Supreme Judicial Court that undertakes this task.) Nor did the provisions
of the Constitution allow this pushing forward, but – because in another
respect it did not cause any problem for the judges of the Constitutional Court
when extending their competence – it was much more important that feeling the
tension generated by their expansive action against the legislature the judges
of the Constitutional Court decided themselves in 1991, in the initial period
of their operation, that they did not intend to compete with the law
interpretation activity of the Supreme Court covering the entire judicial
system (see the Constitutional Court Resolution of 57/1991).
A new attempt to
create the path for the Constitutional Court’s judicial review of the
resolutions made by the Supreme Court on the unity of law seems to have changed
this position. (The resolutions on the unity of law made by the supreme
judicial forum are binding pursuant to the Constitution on lower courts when later
they deal with cases similar to these.) The problem here is that this would
make the direct effect of constitutional rights and freedoms and fundamental
principles on judicial law interpretation formally recognised. So far the
judges of the Constitutional Court have been able to intervene only in the
drafting of laws pertaining to judges, and thus constitutional rights and
freedoms and fundamental principles have exerted their formative effect only in
this domain. By this step a fundamental breakthrough would take place, and
abstract rights and freedoms would be directly asserted in the realm of
judicial proceedings and decisions as well.
There is further
cause for concern that should the path for constitutional court’s direct
judicial review of the resolutions on the unity of law be opened, then the halt
prior to the decision made by the other, supreme judicial forum, also
constituting judicial precedent law, will become simply unjustified. The path
once opened for the constitutional law review of judicial law interpretation
would be constrained to run through the entire high court case-law material.
And if that happens, then for lawyers it will become a primary task to search
for help in the field of constitutional rights and freedoms and fundamental
principles in addition to the provisions of law unfavourable for their clients.
These are abstract and flexible enough to make any case that seems to be losing
defensible. And courts, either at lower or medium level, shall not reject to
transfer the action to the domain of the Constitution as it is done today with
reference made to the Constitutional Court Resolution 57/1991. (See the
judicial decision 223. in 1998, for
example.)
In summary, if the
resolution on the unity of law were made subject to constitutional court’s
judicial review, then within a short time we would get through the necessary
steps to the constitutionalization of law enforcement in the realm of
substantive law, even if this would not be supported by the majority of
constitutional court judges at all. And whether it would stay on “medium”
level, as it was the case with the horizontal effect of fundamental rights in
Germany described above, or would be transferred to the level of direct
constitutional law litigation as happened in the federal jurisdiction in the
U.S., cannot be predicted. This latter case has once occurred in Hungarian
administration of justice when a local judicial court striking down the
relevant provisions of legal rules decided an abortion case on the grounds of
the Constitution. It was approvingly welcome by minor jurist circles but
overall public opinion formed among lawyers and the judiciary reacted
negatively to this case.
It should be noted
that in Central-Eastern Europe it is Poland where attempts have been made to
constitutionalize law enforcement, and until 1997 the constitutional court
there had the power of obligatory law interpretation vis-á-vis judicial courts.
Law interpretation pursuant to abstract rights and freedoms always draws
ideological/political aspects more intensively, and finally this led to open
clash between the supreme judicial forum and the constitutional court judges.
As a result of the clash the new Polish Constitution in 1997 voided the
obligatory law interpretation power of constitutional court judges and their
option to intervene in law enforcement. (See Poplawska 1998:132-133).
3.2 The procedural
law aspect of constitutionalization.
As it has been
described in the analysis of the constitutionalization of American judicial
proceedings, in this domain legal actions are made subject to public law and
constitutionalized by overall social groups who join the action alongside
private persons directly interested in and affected by the action. This
shifts the emphasis from winning a particular action in the short run to
indirect, long-term effects. That brings along both permanent legal effects
(e.g., obtaining a high court precedent which may create legal basis for later
claims for a wide range of people affected by the given issue) and the involvement
of a broader, political public opinion in the procedure of the action.
Looking at the
activity of jurists, judges and lawmakers in Hungary, it can be immediately
ascertained in summary that, contrary to the extensive presence of public law
litigation and class actions intertwined with political implications in the
U.S., these are not frequent in our country. The aforesaid abortion case, which
has been the only example, even in terms of substantive law, of any attempt
made at constitutionalization, appeared in the media and was considered by
political public opinion as a place for clashing with advocates of contrary
social views; and it involved the anti-abortion association and the data
protection ombudsman, who referred to the protection of a constitutional right,
as well as the law politicians of the small group of activist lawyers who were
fighting for an overall constitutionalization of the judicial proceedings.
Furthermore, in some of the criminal procedures with ethnic implications it can
be observed that the representatives of human rights activist organisations
with noticeable media support, the Roma Parliament, the National Ethnic
Minorities Legal Aid Office, e.g., take firm action to defend perpetrators of
Gypsy origin, and approach the problems of the criminal procedure in the light
of constitutional law instead of the criminal law and the rules of criminal
code. This phenomenon, however, has not yet evolved in wider areas in domestic
jurisdiction.
Dissolving this
summary statement and separating relevant legal frameworks, it can be said
about the institutional and practical background concerned in the issue that on
the level of legal frameworks nothing would thwart the shifting of judicial
proceedings towards public law.
In civil actions in
Hungary, pursuant to the European prime rule, public prosecutors also have an
extensive right to enter an action and intervene in an action, although this
right has been narrowed by the statutory modifications made after the changes
in 1989; also, the Constitutional Court Resolution 1/1994 deemed that a part of
public prosecutors’ power to enter an action was anti-constitutional. But even
today public prosecutors apply to take legal proceedings quite freely when the
obligee is unable to defend its rights (see clause (1) §.9 of the Civil
Procedure (CP)). Also, numerous special rules of law empower public prosecutors
to bring a lawsuit or take firm action in civil lawsuits already initiated (see
pp. 36-47 of the explanation of CP), In addition to public prosecutors, social
organisations are also authorised by law in certain areas to bring an action or
intervene in a lawsuit. Thus, Clause (2), §.109 of Act LIII of 1995 shall
empower citizens’ environment protection organisations to take an action in
general provided that they shall notice any activity that endanger the
environment anywhere. Likewise, consumer protection social organisations shall
be authorised under §.39 Act CLV of 1997 to do so in the event of any infringement
of customers’ rights (see pp. 40-41 of the explanation of the CP).
Also, wide legal
frameworks for civil actions to attain the function of public law/political
actions are created under §.54-57 of the CP, which regulate intervention in a
lawsuit. It can be said that they allow intervention into an action on a much
wider scale than the above outlined American solutions because there interested
parties may intervene on condition that the interest in the action is not
properly represented. The Hungarian regulation, on the contrary, does not make
the rule subject to this restriction, and “anyone who is legally interested in
what the outcome of the action in progress between other persons will be, may,
prior to the trial preceding the passing of a judgment by a court of first
instance has been adjourned, intervene in order to facilitate the winning of
such action by the party with identical interest" (CP Clause (1) §. 54.).
And, the points what the legal interest shall be and how directly one shall be
concerned is left by the vague phrasing to be determined by the prevailing
judicial practice. In the United States in the 1960-70’s, e.g., when general
political opinion greatly supported the implementation of social changes
through law, judges were willing to approve any citizen’s compliance with the
condition of being legally concerned asserting that as a taxpayer any citizen
should be concerned in some way in any legal case with broader impact (see
Chayes 1982). In the judicial practice in Hungary the interest by which one is
entitled to intervene is interpreted in a restrictive sense; and this
regulation has remained problem free primarily because Hungarian civil
organisations have not entered in their repertoire the attainment of their
goals through lawsuits.
Furthermore, for
assigning public law function to civil actions the institution of ‘joinder’ set
forth under Hungarian regulation, provided for under §. 51 of the CP, is also
at hand. It is in every respect basically identical with the American institution
of class action, and a possible change in the strategy of domestic civil
organisations can make it a suitable means of pushing actions into the
direction of public law as it happened in the United Sates in the 1960-70’s.
Clause (c) of the aforesaid Section, e.g., allows the option of applying the
institution of joinder, i.e., joint action, in a broad sense provided that “the
claims in the action arise from similar content and legal base”.
The joining of
criminal actions by wider social groups, possibly associations, is allowed by
the fact that §.57 of the Criminal Code secures participation in the action for
“other interested parties”. This innocent power under procedural law will, of
course, exert a genuine overall effect when other interested parties who appear
in criminal proceedings, or, possibly the association (or the representatives
thereof) of a wider circle of the interested parties, base their claims on
constitutional rights and freedoms instead of the procedural law and criminal
substantive law, and thus change the function of the lawsuit. The same applies,
as a matter of course, to joining civil actions. Such actions assume public law
function also by their substantive law basis being shifted towards
constitutional rights and fundamental principles and constitutional court
decisions made on them alongside the procedural aspect of mass action. The
joint effect exerted by the two domains will actually transform the traditional
judicial proceedings.
Thus, in Hungary
legal frameworks are available in the domain of procedural law for the
constitutionalization of law enforcement; and, in addition to the confining
effect exerted by the European law culture, it has been actually the lack of a
strategy in this respect of domestic civil organisations that has fortunately
safeguarded domestic law enforcement from being shifted towards
constitutionalization. It seems, however, that the intense responsiveness of
dominant groups in the sphere of intellectuals and the media to the
intellectual influence of American intelligent circles, makes this kind of
shift more probable in our country than it has been possible in the Western
European countries in the recent decades.
4. Political fighting
through litigation
In European legal
systems continuous political fighting and the competition between various
decision alternatives, which have evolved after the attainment of political
democratisation (thus, in the Western parts of the Continent since the second
half of the 19th century, and in the Eastern parts, in their
recreated form, since the political changes in 1989), are organised in
parliament and around it. Political decisions becoming state decisions, thus
laws, government decrees, etc., constitute the main path for attained results,
agreed compromises of political fighting to become law. The different logic of
law and politics will be at this point transformed by an intermediary law
politics sphere, which nears them to one another through a series of
transformations. This way the different logic of the two subsystems, the
righteous/unrighteous approach in law, the assessment duality of either taking
over the government or going into opposition as the logic of politics, will
remain more or less intact, and politics will, after all, be able to transfer
the majority priorities of the empirical will of the people into the law, the
content of acts.
The intermediary law
politics sphere between the distinct subsystems of law and politics rests
partly on the side of the legal subsystem: in the form of lawyer associations
and other professional organisations, which are no longer forums for
elaborating models of legal dogmatic but forums for choosing between them – by
paying attention primarily to social consequences and not simply to technical
aspects of how to avoid contradictions in terms of legal dogmatics when
choosing between various regulatory models de lege ferenda. On the other hand,
law politics institutions evolve also on the side of the political system as
the divisions of the law politicians of each political party: law work teams of
parliamentary party factions, law departments and events of party colleges,
e.g., can be referred to in this respect. This dual structure of law politics
transforms the regulatory models that arise from within the law in two phases,
and turns those supported by the majority in parliament into statutory orders.
The organisation of law politics can be identified everywhere where a
multiparty system and a parliamentary legislature is in the centre of the
political system and the legal order. In Western European countries and after
the political changes in 1989 in Central-Eastern European countries this law
politics model represents the main path for the connection between law and
politics.
It is possible to
observe another model for connecting law and politics, which attempts to
transfer political aims to the realm of the law through court proceedings;
this model began to develop in the United Sates in the 1960’s and became a
dominant phenomenon for one and a half decade, but since the 1970’s it has been
forced back. Owing to American intellectual/political impacts, however, this
model has appeared, since then, to a certain extent, in some Western European
countries, in spite of the fact of having been forced back in its mother country;
and, especially in the new Central European democracies certain jurists show
responsiveness to it.
4.1 The evolution of
political fighting through litigation
Wherever political
democracy and alternative political efforts and interests may be openly
asserted, on the sites of law determination opposing political forces will most
probably appear as well. Thus, wherever within the legal system high court
precedents play a major part in the determination of law, each political group
will, understandably, push forward to influence them, because such precedents
will determine the possibilities of taking action for thousands of concerned
parties later on as law. How such pushing forward towards judicial decision
takes place is determined by plenty of structural circumstances. To understand
them it is worth comparing the two countries applying common law, the UK and
the U.S. where judicial precedent law traditionally plays an important part,
because in these two countries, in spite of having a common starting point,
political fighting through judicial litigation has developed in strikingly
different ways.
In the United Kingdom
lawyers and especially barristers, authoritative in determining law, and the
judiciary evolving from them have remained internally homogeneous in terms of
politics, from first to last, essentially by being rested on the interests of
the upper classes interested in the maintenance of the status quo. In most of
the cases only political parties have been able to attain political changes in
the existing institutions and prevailing solutions. It has contributed to this
situation that -after the university training of lawyers the mechanisms of the
professional career of barristers/judges select those promoted on the grounds
of their commitment to the existing institutions. Barristers shall enter the
circle of the Queen’s Counsellors subject to the proposal of the Lord
Chancellor, and the appointed shall enter high courts from there, but always
from the row of judges one grade lower, thus the judges who accede to the
position of Law Lords go through several screenings during a period of long
years. This course of the professional career prevents lawyers with activist
lawyer’s attitude from playing a part of any importance in the determination of
the English Law. On the contrary, from 1900 in the United Sates the focal point
of tertiary level lawyer’s training was more and more shifted to universities,
and by the 1960-70’s owing to the opening of the universities to the widest
layers of society lawyers were recruited from the entire scale of society.
Since then American jurists have consisted of black activists who studied
Marxism and Leninism, just as well as bellicose feminists, activist lawyers of
homosexual/lesbian groups, etc., and combative conservative activist lawyers
organised as a reaction against them. And this internal distribution of
political camps have taken roots in university departments with staffs of
department professors working pursuant to different concepts of law; and, in
like manner, renowned feminist activists, black civil rights activists and
combative conservative judges opposing them have been appointed to the
judiciary, subject to whether the conservative Republicans or the liberal
Democrats have given the President of the United States and the legal
administration.
These two opposing
forms of professional organisation of lawyers have given different chances for
political fighting through litigation to evolve; and, while in the UK this has
blocked its way, and therefore political forces attempt to attain the changes
important for them through parliamentary laws instead; in the United Sates the
internal groups of lawyers having become politically heterogeneous and their
spreading to most of jurist professor’s and judicial positions have provided
proper precondition for its evolution.
The lawyers split
into political camps would, however, not have been able to establish the institution
of political fighting through litigation themselves. And indeed another
development, “the rights revolution”, commenced after Earl Warren’s accession
to the Chief Justiceship of the Supreme Court in the U.S. in 1953 contributed
to its establishment as well. There are records from earlier of chief justices
deciding cases pursuant to constitutional rights and freedoms instead of the
provisions of laws, but after the appointment of Justice Warren, step by step,
a majority evolved who deemed it possible to reshape the society of the United
Sates through litigation for social changes based on fundamental rights.
Numerous political efforts had been unsuccessful in getting through the
legislation of either Congress or member states because they were supported
only by minor groups of society, and the majority of society opposed them. It
was in this situation when Warren became Chief Justice, and once Felix
Frankfurter who opposed activist jurisdiction had left the forum of justices in
1962, “the rights revolution”, the trend of social changes through litigation
based on constitutional rights and freedoms, could begin to develop unimpeded.
It was of course also
of prime importance that in the 1960’s the Democrats gave the Presidents of the
United States, first J.F. Kennedy, later assassinated, then Lyndon Johnson, who
in their practice of appointing federal court judges promoted with the greatest
enthusiasm law professors, activist jurists considered to be the advocates of
the rights revolution. Federal court judges so appointed were more and more
ready to approve litigation based on fundamental rights pursuant to the
supporting precedents of the Supreme Court, and thus struck down laws passed by
Congress and member state courts. Lawyers, citizens, following suit, became
more and more “rights conscious”, and under the stimulus of support by federal
courts based their lawsuits more and more on fundamental rights, avoiding legal
actions based on simple provisions of laws.
This development was
overwhelmingly supported by the majority of competent dailies and the media,
and all this gradually built up a favourable atmosphere for rights service
throughout the universities and in intelligent circles. (A typically recurring
favourite scene of the films made in the 1960’s and 70’s showed a simple black
workingwoman (a cleaning lady or a secretary, etc.) engaged in a lawsuit, who
looking up at the figure over the entrance of the court and reading the words
of the Constitution suddenly realised that she had rights and expressing it
with simple words in the courtroom put verbose lawyers to shame.) Based on
favourable media support and climate of opinion, in the beginning black civil
rights movements, then, in the 1970’s, feminist movements, and finally, in the
1980’s, homosexual/lesbian movements built up their institutions. These three
rights movements, which, mostly in association, have been able to dominate
numerous American universities and cultural institutions since the 1980’s, have
set an example for various efforts how to engage in political fighting through
litigation. The movements of immigrants, environmentalists, the homeless,
protectors of animals, etc. have all attempted to attain their political aims
by applying the litigation strategy thus worked out.
Alongside the
formulating of political will based on legislature, parties and parliamentary
lobbies, all this generated a “secondary political system” in the United Sates
from the 1960’s, which based on constitutional rights and freedoms led through
judicial litigation. This tendency of development, however, began to break more
and more since the middle of the 1970’s, and during the term of the Republican
presidents (Reagan, Bush) in the 1980’s was very much forced back, but
political fighting through litigation continues to maintain considerable
positions.
4.2 The legal
frameworks of political fighting through litigation
Lawyers split up into
camps within the profession can use judicial action for political fighting only
in the event that some rules of substantive law and the code of procedure are
redrafted, or reinterpreted, so that instead of/alongside an individual party
engaged in a legal action overall social groups may appear in the action and
litigate in line with abstract and thus politically easily flexible fundamental
rights, instead of simple provisions of laws. Now that the aspect of
fundamental rights has been discussed, let us examine the rules of procedural
law, which help this process.
One of them is the
broadening of the legal term “standing”, the right to initiate an action or
intervene in an action, which gives power both to the party who is directly and
personally involved in the case and parties who are just loosely concerned.
This broadening was made in the beginning of the 1960’s in the United States,
and, as it has been referred to above, there were judges who were willing to
approve any litigant party’s compliance with the condition of being legally
concerned by asserting that as a taxpayer any citizen should be concerned in
some way in any legal case with broader impact. A further process to widen
proceedings was the broadening of the term ‘class action’, as a result of which
several thousands of people and the lawyers of their associations could
participate in the action: in a damage suit initiated because of the damaging
effect of a product of a manufacturing company; for example, or, in a class
action against an authority’s order. Another form of this was ‘public interest
litigation’, or in other words “public law litigation”, which evolved also in
the 1960’s, the main point of which was that when an overall legal issue or
fact was in focus in an action, then anyone who were somehow concerned in the
issue could join the action. Social movement lawyers specialised in political
fighting through litigation made sure that the lawsuit focused not on simple
provisions of law and the restricted legal deliberation thereof, but overall
rights issues.
Finally, it was an
important legal support in the development of political fighting through
litigation that from the 1960’s, under pressure of presidential administrations
supporting it federal laws were passed which allowed the assumption of legal
costs by the state if in a rights action the plaintiff had won the action; and
in such proceedings the postponement of the payment of legal costs until the
end of the proceedings was permitted.
All these formed the
basis, even on the level of procedural law, of the unhindered growth of
political fighting through litigation in the United Sates.
4.3 The organisation
of political fighting through litigation
The organisation
basis of political fighting through litigation is constituted by non-profit,
“public interest” lawyer’s offices, jurist departments of human rights
institutions and various movements, associations. The existence of such
organisations en masse in a country is a precondition required for this kind of
litigation to develop to a noticeable level simultaneously with traditional
litigation. For lack of these, it is vain that the high court judiciary becomes
responsive to political fighting through litigation, it is vain that through
their decisions they attempt to urge certain segments of society to attain remarkable
changes; mass actions will fail, and without sustained effect the entire
political fighting through litigation will come to a sudden stop. The supreme
judicial forum in India, e.g., following the American pattern, commenced a
practice of activist judgement to shape society at the end of the 1970’s, but
due to aforesaid causes it died out without any effect after a while (see Epp
1998:110).
It was not like that
in the United States. There the organisation of political fighting through
litigation began as early as the beginning of 1900, although at that time the
judiciary firmly resisted the appeal of fundamental rights and their adherence
to the law was characterised by a rigid, conservative attachment to the words
and phrases of legal rules. When quite rarely they acted firmly against certain
laws in line with fundamental rights, even then they did that in the interest
of the forces that protected the existing conditions and relations between
forces; as in the Lochner case, e.g., which became the symbol of conservative
activism for decades. In spite of all these, ACLU (American Civil Liberties
Union) the first great fundamental rights organisation was founded in the
United Sates as early as the beginning of the 1920’s followed by NAACP
(National Association for the Advancement of Colored People) that fought for
equality of rights for black people and numerous other fundamental rights
organisations. Right from the outset the most important one of these had always
been ACLU, which had been funded since its setting up by American financial
circles interested in changes, and in the beginning this organisation was the
leaven in setting up several similar organisations, both by contributing to
their organisation and funding them (see Epp 1998:27-49).
Without these
organisations it would have been impossible to launch the rights revolution
since legal costs that cover long, multiphase litigation were far more than the
financial means of individual litigants. Only the financial support given by
ACLU and the other fundamental rights organisation established with its help
could guarantee that simple litigation was to be extended to litigation based
on constitutional rights and freedoms. Indispensable was the presence of
fundamental rights organisations in actions also because with traditional
jurist’s expertise and methods there would have been no chance for fundamental
rights argumentation marshalling facts of moral philosophy, sociology and other
branches of science. Only lawyers of organisations specialised in these fields
were able to elaborate that.
After these
beginnings, by the end of the 1930’s, when by breaking the position of the
conservative justices who opposed the New Deal the majority of the supreme
judicial forum was turned gradually towards supporting the ‘progressive’
change, the spirit of ‘Let’s turn society from fundamental rights to
progressive direction!’ slowly began to spread at the peak of federal judiciary
vis-á-vis the conservative majority in the legislature. This had been almost
completed by 1947 but finally it was Earl Warren’s appointment in 1953 that
accomplished the revolution. The readiness of the majority of the justices of
the Supreme Court, who turned against the legislature, to apply fundamental
rights on an activist basis gave a further push to the development of cause
lawyering organisations, and by the 1980’s masses of them had been set up
(Menkel-Meadow 1998:31-68). Alongside rights legal aid associations either
incorporated into movements or built up as ancillary organisations of these,
from that time began to take shape the system of non-profit public interest
lawyer’s offices, which were formally independent lawyer’s offices just as
any normal lawyer’s office but the staff committed to specific causes were –
and continue to be – actually regarded as activist lawyers, rather than neutral
lawyers who worked purely for retaining fee. (The latter were called
derogatorily ‘hired gun’ by activist lawyers contrasted with their unselfish,
committed legal work.) But because on the grounds of legal regulations made
from the 1960’s the funding of constitutional rights litigation from public
sources commenced and huge masses of such actions were initiated, alongside the
initial committed lawyers entered neutral lawyers working primarily for money;
thus, ‘lawyer technicians’, who worked essentially for retaining fee but continued
to maintain a neutral relationship with the case and the client, were now
distinguished from genuine activist lawyers (see MacCann/Silverstein
1998:261-292). Since the 1970’s in the several hundreds of lawyer’s offices of
this kind five-six thousand social movement lawyers have worked, including
neutral lawyer technicians, and this number has not decreased ever since;
although since the 1980’s because of the federal judiciary having been shifted
towards textual approach to rules of law the chances of this activity winning
lawsuits have considerably diminished (Scheingold 1998:118-150).
Litigation based on
social movement lawyers (or, as they call themselves ‘cause lawyers’) show some
fundamental differences beside traditional, normal leading of actions by
lawyers, and these features well indicate that political viewpoints directly
enter the realm of procedure through the various legal aspects kept separately
in traditional lawsuits. Five major differentiating features can be discerned
in the legal actions of social movement lawyers compared to traditional
lawsuits (see a summary on this in Trubek/Kransberger 1998:202-205).
1. ‘Humanising
the action’, which means the attempt to confront argumentation
confined to traditional legal aspects and the constraint to mould the case into
legal categories; and the statement of the facts of the case with as exhaustive
sociological data as possible. This kind of action has a great advantage in the
American type litigation which is based on an extensive involvement of lay
jurors with jurors present, in addition to criminal cases, both in civil
actions and lawsuits that fall under other branches of law; and where the
advocates of rights activism permanently require that the function of the
jurors be augmented. Instead of reduction to legal aspects a wide-ranging
statement of facts with emotional, moral, political overtones, addressed as
much to the jury as the professional judge – this is what makes an action
‘humane’.
2. ‘Politicising
actions’, which means that instead of legal arguments and
concepts that are traditional and politically mostly neutral (or, as phrased by
social movement lawyers: that apply more concealed political considerations)
overtly feminist, antiracist movement, etc. legal arguments are used subject to
which particular sector of social movements the political fighting through
litigation concerned falls under. It should be noted here that the university
sections of American social movement lawyers, who have been able to establish
themselves since the 1970’s and 80’s at law schools of universities, have
consciously attempted to work out modifications of concepts and out of them
systems of concepts under various branches of law which represent overtly
feminist, racial (protective towards black or coloured people) or
homosexual/lesbian legal constructions. And social movement lawyers use these
in actions, preferably avoiding traditional law dogmatics concepts. Because
these are, they believe, antifeminist, racist and heterosexually biased.
3. ‘Making
actions collective’, which means that alongside the individual litigant
as many number of other parties in similar situation are to be involved as
possible. As it has been indicated, since the 1960’s this has been made
possible by joining public interest actions, class actions and by filling the
federal judiciary in these years with judges who are responsive in this
respect.
4. ‘Making
actions media events’, which means that in the procedure of the
action alongside the aim of winning the suit appears the aim of presenting the
case (and the ‘cause of movement’) in the mass media. What is more, the
broadest possible presence in the media through litigation constitutes an
impact which outdoes the benefit of winning of the action, because the ‘cause’
becomes known to the general public, multitudes of sympathizers might be won,
and the initiation of similar lawsuits in other parts of the country pursuant
to the pattern presented in the media might be urged. Therefore, social
movement lawyers often acquiesce in losing the action when the circumstances of
the lawsuit make huge presence in the media probable. This may, however, be in
conflict with the aim of attaining an important precedent, which is one of the
essential goals of social movement lawyers in rights actions (strategic
litigation), and this urges them to refrain from litigation doomed to be lost.
And, indeed, materials on ‘cause lawyering’ notice that quite often raging
battles are fought between non-lawyer activists who prefer presence in the
media at any cost and activist lawyers of movements who keep strategic legal
aims much more in view (MacCann/Silverstein 1998:263-274).
5. ‘Emotionalising
the action’, which means that the litigant, often multitudes of
parties, and the lawyer share emotional grounds. Social movement lawyers, cause
lawyers are not simply ‘hired guns’ in the hand of the litigant who are ready
to put into action their brilliant legal technique on behalf of any client for
a proper fee, but ‘associates sharing ideas and principles’ who live for the
‘cause’ very much like their clients represented by them. This, however, often
gives rise to the conflict that the client, with a view to concentrating on his
or her own particular interests, might be inclined to come to an agreement
and in general attempts to focus on his or her own specific case, while
committed ‘cause lawyers’ fight for the overall cause. This tension can
be eased by involving in the action as many clients as possible, because that
way the all-embracing nature becomes manifest and the social movement lawyer
concentrating on such all-embracing cause can act rather free from the
requirements of the individual litigant.
All these features
can develop in a powerful form if the costs of constitutional rights lawsuit
are undertaken by the state, and in this event social movement lawyers will
search for the client indispensable for the action purely as a justification;
they may even pay, under some pretext, the person formally involved as
plaintiff so that they could initiate the lawsuit based on the client. In this
event, because the client is not to bear any costs, social movement lawyers can
freely shape the action in line with the above-described features. That is why
it means the greatest danger for political fighting trough litigation when
public funding of constitutional rights litigation is curtailed either by
federal or member state legislature; and this has occurred several times in the
United Sates in recent decades; to say nothing of the endless number of bills
lying submitted to federal and member state legislatures.
After the descriptive
presentation let us now briefly look at the track along which law and politics
are connected in terms of assessment. While the law politics sphere organised
around the parliament is based on keeping the logic of the two subsystems
sound, and brings over regulatory propositions from the legal dogmatic sphere
through double transformation without damaging the closed construction of law,
political fighting through litigation takes political fighting and its
viewpoints directly into the courtroom. Furthermore, as a precondition of that
it politicises law departments of universities, and creates there overtly
political law theories, legal constructions that overtly assume political
viewpoints. Political fighting through litigation thus evades legislature
and using abstract constitutional rights and freedoms as weapons turns straight
towards the courtroom, and with social movement lawyers, university activist
law professors or courtroom cause lawyers, realises its goal directly inside
law, preferably with huge presence in the media, broadcast live to public
opinion.
4.4 The appearance of
signs of political fighting through litigation in Hungary
The legal culture and
the organisation of lawyers in Europe do not favour the evolution of political
fighting through litigation in Hungary as it has not been the case in other
European countries either. In Hungary the organisation of politics takes place
rather steadily around the parliamentary field, and the departments of
university law faculties are mostly attached to the politically neutral set of
traditional law dogmatics constructions. Here the deep-seated attitude of
lawyer’s ethic represents adherence to dry/elegant argumentation in courtrooms,
and the obligation to exclude direct political overtones. Therefore, political
fighting through litigation has not been able to get a foothold even in the
countries where constitutional jurisdiction has evolved. (In the beginning,
from the end of the 1940’s, this referred to Germany, Italy and Austria; then
from the end of the 1970’s Greece, Portugal and Spain followed suit; and after
the political changes in 1989 most of the Central-Eastern European countries
have also introduced this institution.) Germany has gone the farthest towards
it by acknowledging the effect of fundamental rights in the interpretation of
laws, but this legal possibility has not developed into political fighting
through litigation, to the contrary, the inclusion of fundamental rights into the
interpretation of the provisions of law made them ‘embedded in legalese’. That
is, it has been more typical that fundamental rights have been supplied with
dogmatics and thus ‘tamed’ than fundamental rights have politicised judicial
courtrooms.
After these
antecedents it seems surprising that in spite of the fact that the existence of
constitutional rights and constitutional jurisdiction in Hungary, as an
institution created after the political changes in 1989, goes back only for ten
years, but minor lawyer’s circles have already set out to exploit the
possibilities of political fighting through litigation. Looking at the sources
of financing and intellectual motivations, these developments arise directly
from the social groups interested in American political fighting through
litigation, and they are actually the transplantation of institutions and
solutions tested for decades into Hungary. Their basis is represented by the
Central European University, the Fudamentum Human Rights and Documentation
Centre and some social movement lawyers of various legal aid organisations and
movements of various ethnical groups basically built up on the financial basis
of the American Soros Foundation. Let us look at what chances they have for
introducing the practice of American political fighting through litigation in
our country.
What increase their
chances are factors primarily outside law. Very strong support from the media
creates the advantage which this little group enjoys, and the extremely
centralised operation of the media in the capital city shaping public opinion
of the entire country as well as personal ties between executives of the press,
the radio and television makes this advantage very serious. Political fighting
through litigation rests on the media, as it has been the case in the United
Sates described above where ‘the rights revolution’ has been slowly attained
also through the media since the 1920’s.
Factors inside the
law, however, do not favour this law politics strategy. The internal courses of
judicial career separated from politics in 1997, and the appointment of judges
and their promotion in the hierarchy of the profession is not possible unless
in adherence to the patterns accepted by the entirety of the judiciary. This
course of the career gives not much chance for activist lawyers breaking away
from the European legal culture with a tradition of several hundred years – we
can state our hypothesis; and, at this point, reference can be made to the
effects arising from the patterns of the English judicial career which also
hinder the spreading of activist lawyers for the same reasons.
A further obstacle in
the way of the spreading of social movement lawyers is the fact that current
Hungarian activist lawyers are almost exclusively university jurists, or legal
experts at some organisation, but they may not act as lawyers. The few lawyers
who quite frequently use human rights motives in their argumentation, either
for defence against the abuses in the phase of police investigation in criminal
cases, or when threatening to apply to Strasbourg after having lost a case at
home, are broadening the range of traditional tricks of lawyering rather than
actually acting as social movement lawyers.
Among university
jurists, however, a climate of sympathizing with social movement lawyering is
more intensely present but it is probably based on the fact that they are not
fully aware of the effect exerted by social movement lawyering and political
fighting through litigation on the material of specific branches of law – and
specific law departments! The positive attitude means much rather that “After
all, constitutional rights represent a highly noble aim!” And, this, looking at
it in itself, is true.
As a conclusion, it
should be noted that in the United States the euphoria of the 1960’s and 70’s,
once the effect of political fighting through litigation endangering the legal
system had been experienced, was followed by a vehement reversal, and by now
political fighting through litigation has become just a shadow of what it used
to be. Information regarding this was totally lacking when after 1989 in
Hungary we began to introduce constitutional jurisdiction as a counterpole of
dictatorship, and public opinion often regarded the taking of constitutional rights
further to the courtroom of normal forums of justice as the augmentation of
democracy. This article can be nothing else but a brief introduction to
throwing off one-sidedness.
5. Why has there been
no ‘Rights Revolution’ in Germany?
Similarly to the
United States, from the mid 1950’s Germany saw changes in the direction where
in everyday judicial proceedings judges based their judgements, in addition to
simple statutory law, directly on the constitution. A stronger version of this
was supported at that time also by the highest labour court president Hans
Nipperdey, who proclaimed the direct effect of fundamental constitutional
rights (see Bumke/Schuppert 2000:25). In view of this, striking down the
relevant statutory provisions judges could decide the cases presented to them.
After heated debate, eventually the influence of fundamental constitutional
rights was not able to gain ground in adjudication to such an extent, but
indirectly, when the open aspects of statutory provisions had to be interpreted
by judges in the light of fundamental rights, the building of adjudication on
fundamental rights was attained. In the other countries of the world, where
constitutional review had been institutionalised, the inclusion of fundamental
rights into the adjudication was not followed in any way for a long time, and
only in recent years have there been signs of it being followed in certain
countries. (E.g., in Canada since the 1980’s, following the example of the US,
in Italy following the pattern applied in Germany, shifts have taken place in
this direction.) Thus it is interesting to compare the different features of
the German and American fundamental rights jurisdiction that go back almost to
the middle of the last century. In Germany this development has scarcely
affected the total structure of law and the process of political decisions, and
the layer of fundamental rights have mostly just supplemented the internal
structure of law and politics. Contrary to that, in the United States it has
exerted a cathartic effect both on internal elements of the legal system and
the operation of the law, as well as on the institutions involved in the
political decision making. In the latter, fundamental rights adjudication has
led to a social revolution, and the changes that have taken place in society,
politics and law are summed up under the denomination ‘rights revolution’ in
the relevant literature (see Epp 1998; Sarat/Scheingold 1998). In Germany,
however, it has produced no more than shifts in emphases, but no ‘rights
revolution’ can be referred to here.
What can be said in
explanation of the absolutely different course of the process in the two
countries?
The first point that
should be considered is how ‘rights revolution’ evolved in the United States,
the next thing to be examined is what obstructed the progress of similar
processes evolving in each structural element of law and politics.
5.1. The development of the rights revolution
in the United States
As regards the key
elements in the development, the following phases and progresses can be
discerned in the course of the rights revolution in the US.
1. The
commencement of the process was represented by the appointment of Earl Warren,
a former member state, Republican governor, Justice of the Federal Supreme Court
in 1953, which appointment was later called by President Eisenhower the
greatest error ever made in his lifetime. Contrary to the will of the majority
in the legislature and the public opinion, Warren launched Supreme Court
adjudication striving to refashion social conditions relying on constitutional
fundamental rights. In the first years, due to the resistance of Felix
Frankfurther and some justices forming a group around him, it was not able to
evolve, but after Frankfurther retired in 1962, there was no more obstacles in
its way. The strategy striving to restructure social conditions through
adjudication based on fundamental rights was supported by a firm majority in
the US Supreme Court throughout the 1960’s. The changes in the internal
relations of the highest judicial forum themselves, however, would not have
been able to create the rights revolution; numerous additional circumstances
and simultaneous changes were also required.
2. The key
element in this was that the community of jurists in the United States was
radically extended and subsequently fell apart politically. With the vast
extension of university education in the 1950’s and 60’s, the number of college
and university students multiplied in general (similarly to the radical
extension that took place in this field in most of the countries in Western
Europe), and the same extension took place at law faculties too. The
governments succeeding each other acted uniformly as regards the fact that
large numbers of students from poorer layers of society, specifically from
black and Spanish minorities, were to be admitted to universities with the
government’s assistance. The communities of the American legal profession,
formerly homogenous socially and politically, were, in the course of this radical
extension, more and more disintegrated into political camps relentlessly
opposing each other. The activists of ‘The Black Panthers’ acquired law degrees
just as the children of conservative white farmers, or other children of poor
minorities from the ghettos of American cities, and by the end of the 1960’s
multitudes of movement lawyers had been trained among the walls of law
faculties. Given the presence of such jurist communities, the earlier neutral
administration of justice became, in several respects, the terrain of political
movement lawyers.
3. The
falling apart of the legal profession in itself could, however, not have
produced the rights revolution, if the socialisation of lawyers at the
universities had been able to resist politicisation, and university law
education had remained within the framework of the earlier neutral law
dogmatics/case law. That was what began to disintegrate at the end of the
1960’s, and the formerly reigning procedural law concept was more and more
forced into the background by the ‘moral philosophy’ law concept shaping
fundamental rights activism into a theory. The focal point of law was shifted
to the level of constitutional rights, and the regulation of each branch of law
was gradually transferred around the fundamental rights. These were, however,
due to the abstract nature of fundamental rights, and the directions of
fundamental rights contradicting each other, allowed freer judicial arguments
and more discretionary jurisprudence corroboration. Family law, labour law,
financial law, criminal law, procedural laws began to appear more and more as
“derived” constitutional law branches, and in them overall
ideological-political argumentation gained ground vis-á-vis the former
neutral/law dogmatics viewpoint.
However, not only in
terms of the overall law concept did this radical shift take place in the
United States, faculty members were basically transformed too. Having become
enormously huge, American university education required the multiple of earlier
academics from the 1960’s, and they were recruited mostly from lawyers’
communities politically opposing each other. The black movement activists, the
radical feminists, the homosexual/lesbian movement lawyers, etc. became the
members of law faculties the same way as others coming from the legal
profession socially/politically more heterogeneous. What is more, it can be
said that it was just the members of law faculties that fulfilled the role of
catalysts in organising the human rights/political movements of specific social
groups. To a different degree at various universities, education at law
faculties became to a certain extent the key channel for legal movements and
political education at that time in the United States.
This was supplemented
by the transformation of the conceptual material of each field of law from the
aspect of movement lawyers. For example, the conceptual reinterpretation of
family law, the creation of new concepts by the university jurists of radical
feminists, or from another aspect the same was attained by the lawyers of
homosexual/lesbian movements. Numerous fields of law, the concepts of labour
law were transformed by the leftist/Marxist ‘Crits’, and in almost each branch
of law an ideologically/politically competing conceptual material evolved. And
most of the students studying at law faculties had the option to elect the set
of movement law concepts in line with their origin, family background from the
offer of political groups competing with each other at the faculties.
In summary, it can be
said in this respect that legal education slipped from the neutral law
dogmatics case law education to teaching the set of concepts of cause lawyering
while training a steadily widening range of young lawyers.
4. These
processes were supplemented, and made possible, by the changed method of
social/political fight from the beginning of the 1960’s in the United States.
At that time the political organisations were aimed at the legislation of the
Congress and the member states gradually changed direction, and following suit,
induced by the adjudication of the Warren tribunal striving to refashion
society, political movements started to build their organisations towards the
court room through setting up their legal departments. In addition to the Supreme
Court, the Democratic governments of the 60’s attempted to appoint judges to
all federal courts who showed responsiveness to the rights revolution, and
instead of simple legal material they built their judgments directly on
fundamental constitutional rights, and were willing to concede the increasingly
wider fundamental rights definitions of activist lawyers. E.g., in the event of
employment contracts wages payable in the future were included in the concept
of property, and thus it was possible to turn the majority of labour law
proceedings into constitutional proceedings based on the protection of property
under the constitution where an employee was dismissed from his/her job. Also,
there were arguments which claimed that a worker’s sole property was his/her
working power, subsequently, in the event that a worker became unemployed,
he/she was deprived of his/her property, therefore it represented that his/her
fundamental constitutional rights were infringed in the first place. And the
spreading of cause lawyering induced the Democratic presidential
administrations of the 60’s to elect federal justices more and more on the
grounds of their earlier movement lawyer’s career, and as a counter effect of
which the Republican presidential administrations in the 70’s tried to fill
vacancies with emphatically conservatively biased university lawyers.
Subsequently, after the university movement lawyer training, then the militant
cause lawyering the federal judiciary was completed with jurists having such
experience, or their political opponents. (At member state courts there were
also shifts in this direction but this change took place mostly at the federal
level in line with the fact that the ‘rights revolution’ was based on the
fundamental rights provisions of the federal constitution.
In the beginning only
a few large organisations were active in the forefront of cause lawyering.
Thus, the establishment of ACLU, the American Civil Liberties Union constituted
the commencement but as fundamental rights jurisdiction spread in everyday
adjudication from the 1960’s, gradually more and more new social groups and
political organisations moved towards the direction where they established
legal departments. Thus, after the cause lawyering organisations of the
feminists, the gays, the black, the homeless, the widest range of minorities,
including the blind, national minorities, etc., followed suit. Having anyway no
other option owing to the oversized legal education, graduates found jobs at
the thousands of movement lawyer’s offices, and tried to live on public funds
granted to minorities and the state budget amounts allocated to constitutional
litigation. A not negligible proportion of the American legal community, which
consists of almost one million members, is constituted today by these lawyers
specialised in cause lawyering.
6. The above changes
could not have occurred if the processes of ‘rights revolution’ had not been
granted continuous support on the intellectual/cultural scene and in the world
of the media arising from it in the United States. The leading newspapers,
television channels, especially on the East Coast, gave the strongest support
to the fundamental rights movements, and definitely helped from first to last
to discredit and force into the background the ‘conservative’ lawyers’ groups
opposing them. Actually, this wide and intense media support allowed for the
internal morale of universities to change, and for cause lawyering to settle at
law faculties throughout the US.
7. With regard to the
most ardent economic/political fights and the motives, it should be pointed out
that it was the banking/financial capital that was all the time in the
background of the fundamental rights movement. Even the first human rights
organisation was supported by banking/financial capital from the 1910’s, but
also later it was the leftist and liberal groups of the banking/financial
capital opposing the industrial/agricultural capital and their conservative
social groups that constituted the economic and political roots of the rights
revolution. Contrary to the industrial/agricultural capitalist groups and the
majority of society sharing views with them, the banking/financial capitalist
groups interested in changes, and the leftist, liberal layers represented by
them, attempted to gain ground through espousing the widest range of
minorities. It was this that the rights revolution provided ‘human rights’
clothing for.
The starting-point
was given for the rights revolution in the middle of the 1950’s just as much in
Germany as in the United States. Hans Nipperdey as the President of the Federal
Labour Court attained a judgment in this court, which in a labour case struck
down the relevant labour law statutory provisions and used directly one of the
articles of the German constitution as its basis (see Alexy 1985;
Bumke/Schuppert 2000). The theory of the direct effect of fundamental
constitutional rights elaborated by him was given certain support in the legal
profession in Germany, but once they had thoroughly discussed the issue of
relativizing legal provisions resulting from that and the devaluation of the
role of codices controlled by the law dogmatics of each branch of law, the
overall majority refused this alternative. After that the Federal
Constitutional Court declared the indirect effect of fundamental rights
in one of its judgments made in 1958. Accordingly, albeit justices had to take
into account the relevant fundamental constitutional rights in the
interpretation of specific statutory provisions, they were bound by the pure
sense of the statutory provisions, and they were not allowed to set them aside
with reference to the fundamental rights.
This indirect effect
has become generally accepted in German adjudication, but actually, it plays
only a secondary role beside the interpretation based on superior court
precedents, or the law dogmatics literature for each branch of law. In
comparison with the American rights revolution, here the intertwining of
constitutional fundamental rights into the judges’ adjudication has
substantially caused only minor shifts of emphasis.
Let us look into what
circumstances have protected the traditional structure of the legal system here
from the rights revolution.
1. The key factor
that stopped development towards the rights revolution was constituted by the
German judiciary being embedded in the university jurists handling law
dogmatics of the branches of law. It is especially true at the superior and
Supreme Court level where personal ties with the groups of university law
professors can be shown, but the socialisation of the entire German judiciary
based on law dogmatics also played a part. And this is because a judge’s career
in Germany begins right after graduating from university, and it is subject to
preliminary practice of law, and what happens at universities is handing over
to and hammering the set of concepts of law dogmatics into the students.
Isolation from lawyers and everyday life during a judge’s career makes the
judiciary more closed against social/political fights. Comparing them with the
American judiciary, it can bee seen that here judges are recruited from the
layer of lawyers, also university jurists, who are expectants of positions
especially in superior courts and supreme courts, and simultaneously pursue
lawyer’s activity too. This intertwined lawyer/judicial layer is integrated
into social/political organisations in numerous ways.
Therefore
structurally it is the isolation of the judiciary from social/political fights
that is typical in Germany, and their involvement in it that is typical in the
US. This is what provides the key factor for the emergence of the rights
revolution in the US, and this is what explains the rights revolution coming to
a sudden stop in Germany.
2. In comparison to
the US there is another difference in Germany and it is the internal
homogeneity of the legal profession. Although the dimensions of the legal
communities have dramatically grown also in Germany in the recent decades, and,
contrasted with the formerly typical upper-middle class origin of the members
of the legal profession, this has extended recruitment much more towards the
lower layers of society, but the existing legal cultural patterns have been
able to integrate the more heterogeneous young lawyers flooding in. That is,
the internal cohesion, political homogeneity of the legal profession has been
more or less preserved in spite of its radical extension, and the various
differences in socialisation and origin of the young lawyers have not
disintegrated the German legal profession, have not established markedly
different political camps. All these make the neutrality of communication and
contacts within the legal profession determinant.
3. The same political
neutrality can be observed in the internal operation of university law
faculties too. In spite of the differences in origin and socialisation having
increased in the recent decades, university jurists have remained within the
framework of politically neutral law dogmatics analyses, and the differences
in ideology and approach of various political movements have not been able to
penetrate into the legal education as an alternative legal conceptual
framework. The recruits here are socialised to become lawyers not by selecting
from the feminist family law, conservative family law, leftist-critical family
law offer (in the same way the other branches of law could be referred to as
well), but on the grounds of the basic concepts of the law dogmatics of the
branches of law that remained uniform. Consequently, the neutral recruitment of
lawyers have remained typical in the radically enlarged German legal profession
in the recent decades from first to last, and ‘movement lawyers’ typical in the
United States scarcely graduate from universities.
4. It is an important
difference between the American and German legal scene that commitment to legal
dogmatics in constitutionalization has remained unharmed in Germany. Although,
among the jurists of the various branches of law indignation is often caused by
the justices’ innovations in dogmatics in connection with their specific
judgments with regard to the internal regulation of each branch of law, but the
important difference in this is that it is the justices themselves who at least
attempt to tie their major intrusion into the branches of law to legal
dogmatics revisions. On the one hand, this has lessened the extent of the
evolved deviation from the regulation in various branches of law, on the other
hand, through the simultaneous further development of legal dogmatics system an
account can be demanded of later justices’ decisions. Accordingly, there
continues to be a limited possibility for making optional decisions on the
grounds of political values, contrary to the American practice of
constitutional jurisdiction. The commitment to the preservation of legal
dogmatics free of all contradictions has hindered the German constitutional
review from directly undertaking the solution of social/political tensions and
trying to refashion the established institutions of society based on
fundamental rights.
5. The relations
inside the legal profession, the judiciary and the constitutional court
practice have not favoured the strategy that in the US has driven a segment of
political fights from legislative struggles to the courtrooms. While in the
United States various nation-wide human rights organisations have been
established based on this strategy, and all the political groupings have tried
to build up cause lawyering departments, for example, in the form of public
policy lawyer’s offices, human rights foundations, etc. and a layer of several
thousands of movement lawyers have developed here, in Germany this strategy has
evolved to a very low extent. As a substitution for this, reference could be
rather made to the use of supranational European organisations for political
purposes. Certain political groups, for example, try to attain recommendations
based on human rights in the Parliamentary Assembly of the European Council
which they can thereafter use as tools in fights regarding internal politics to
drive legislation towards specific directions. Or, likewise, in Europe the
claims filed with the European Court of Human Rights represent the realisation
of political fight through human rights ideology against one’s own state (that
is, the governing party majority). They, however, play just an insignificant
part in view of the entire scope of political fighting, which continue to be
organised around debates in parliament. Political fighting through court
proceedings and its cause lawyering institution system has remained vestigial
in Germany.
6. No support has
been given to the rights revolution in Germany by the intellectual/media sphere
either. While in the United States the East Coast press, television channels
have contributed the most intensively to developing the rights revolution and
supporting the restructuring of existing social institutions, the sphere of the
media in Germany politically more balanced and refraining from getting involved
directly in politics has not seemed willing to do that. Subsequently, apart
from the brochures of minor human rights movements possibly pointing at this
direction, these demands have not been able to become an overall force to
shape public opinion.
7. A more profound
explanation for the difference between the German and American sphere of the
media can be given by pointing at the difference in the strategies followed by
the influential capitalist groups. In Germany there is no such severe
opposition between the banking/financial and the industrial/agricultural groups
that in the United States has induced to undertake even civil war conditions in
recent years. Subsequently, this opposition can find its solution within the
boundaries of multiparty system and parliamentary fights. Here, there was
simply no need to “arm minorities with human rights” in the fights between
capitalist groups. As Charles Epp, an excellent analyser of the ‘rights
revolution’, asserts, ACLU, established and for a long time exclusively
financed by the banking/financial circles, commenced its operation in 1910, and
from then on its activists have had a central role in attaining each Supreme
Court decision, setting up new human rights organisations (see Epp 1998:4). In
Germany no such development has taken place.
In summary, while in
the United States, after commencement in the 1950’s, several factors
strengthening each other developed the constitutionalization of adjudication,
in Germany after a similar starting-point the circumstances with contrary sign
and their cumulative effect brought this process to a sudden stop. Owing to
that, fundamental constitutional rights as a new aspect were incorporated into
the German legal order only as ancillary provisions. On the contrary, in the United
States exerting cathartic effects and partly smashing the internal components
of the legal system it developed into a rights revolution. Its after-effects
can be identified even today in the American legal system, although since the
middle of the 1970’s great efforts have been taken and consequently
counter-tendencies have begun to make good what has been damaged by the ‘rights
revolution’.
Fundamental
constitutional rights cannot harmonically adjust to the layers of the law
unless their effect, and the constitutional jurisdiction based on them, are
directed towards the legislation and not directly towards adjudication. The
comparison of the German and American legal development is instructive in this
respect.
Literature
Alexy, Robert (1985):
Theorie der Grundrechte. Nomos Verlag Baden-Baden.
Bumke, Ch./G.-F.
Schuppert (2000): Die Konstitutionalisierung der Rechtsordnung
Nomos verlag. Baden-Baden.
Chayes, Abraham
(1982): Foreword: Public Law Litigation and The Burger Court.
In:
Harvard Law Review. 1982 (Vol.96) pp. 4-60.
Cohen, George M. (1985): Posnerian
Jurisprudence and Economic Analysis of Law; The View from the Bench. In:
University of Pennsylvania Law Review. 1985 (Vol.133) NO.5. pp. 1117-1166.
Elhauge, Einer (1991): Does Interest Group Theory Justify More Intrusive
Judicial Review? In: The Yale Law Journal (Vol. 101) NO.1. pp. 31-110.
Epp, Charles R. (1998): The Rights Revolution. Chicago and London.
Chicago
University Press.
Feinberg, Wilfred (1984): Constraining “The Last Dangerous Branch”: The
Tradition of Attacks on Judicial Power. In: New York University of Law Review.
(Vol.59) NO. 2. pp. 252-276.
Feldman, David (1992): Public Interest Litigation and Constitutional
Theory in Comparative Perspective. In: The Modern Law Review. 1992. NO. Jan.
Koch, Henning (1998): Constitutionalization of Legal Order.
(Manuscript).
Copenhagen
(Bristol ’98: XVth World Congress of Comparative Law)
Krislov, Samuel (1963): The Amicus Curiae Brief. In: The Yale Law
Journal. 1963. NO.2.
Langer, Vera (1988): Public Interest in Civil Law, Socialist Law, and
Common Law Systems: the Role of the Public Prosecutor. In: The American Journal
of Comparative Law. (Vol.36) Number 2. pp. 279-95.
MacCann, M./Silverstein H. (1998): Rethinking Law’s “Allurements”: A
Relational Analysis of Social Movement. Lawyers in the United Sates. In: Sarat,
Aust In: Sarat, Austin/S. Scheingold (ed.): Cause Lawyering. Political
Commitments and Professional Responsibilities. New York. Oxford University
Press. 1998. pp. 261-292.
Menkel-Meadow, C. (1998): The Causes of Cause Lawyering: Toward and
Understanding of the Motivation and Commitments of Social Justices Lawyers. In:
Sarat. Austin/S. Scheingold (ed.): Cause Lawyering, Political Commitments and
Professional Responsibilities. New York. Oxford University Press. 1998. pp.
31-68.
Német, János (ed.) (1999): A Polgári perrendtartás magyarázata
(Commentary on the Civil Procedure) KGJ. Budapest
Pokol, Béla (2001): Multi-layered Legal System. (Manuscript) (Amsterdam
XXth World Congress of the International Association for Philosophy of Law and
Social Philosophy.)
Poplawska, Eva (1998): Constitutionalization of the Legal Order. In:
Polish Contemporary Law. Quarterly Review. 1988. NO.1.4. pp. 115-133.
Scheingold, Stuart (1998): The Struggle to Politicize Legal Practice: A
Case Study of Left Activist Lawyering in Seattle. In: Sarat, Austin/S.
Scheingold (ed.): Cause Lawyering, Political Commitments and Professional
Responsibilities. New York. Oxford University Press. 1998. pp. 118-150.
Schneider, Carl E. (1988): State-Interest Analysis in Fourteenth
Amendment “Privacy Law”: An Essay on the Constitutionalization of Social
Issues. In: Law and Contemporary Problems. 1988 NO.1. pp.79-121.
Tushnet, M./Schneider, N./Kovner, M. (1988): Judicial Review and
Congressional Tenure. An Observation. In: Texas Law Review.
Vreeland, Cindy (1990): Public Interest Group, Public Law, and Federal
Rule (24)a). In: The University of Chicago Law Review. (Vol. 57) Number 1. pp.
279-310.
Béla Pokol
Professor of the
Eötvös Lóránd University
Law Faculty
H – 1053. Budapest,
Egyetem tér 1-3.
E-mail:
pokolbela@matavnet.hu