The Courts and the Culture War
Posted: October 13, 2023 / Written by: Elizabeth Wolstein /
Impressions of International Conference in Budapest on Challenges Facing the Judiciary
Taking a break from the culture war, I thought I would share my impressions of a conference in Budapest in which I participated in late September, addressing Challenges Facing the Judiciary in the 21st Century. The conference was sponsored by Hungary’s University of Public Service and brought together judges, law professors, and others from Hungary and surrounding countries. I was a somewhat unique participant in that I was the only American, the only practicing lawyer, and the only panelist from a common law system. For my presentation, I sought to show how, in my opinion, constitutional analysis has become distorted in culture war cases such as those discussed in this blog.
For an American observer a few themes stood out. First, there is a tension between national sovereignty and the primacy of European Union law. At some point, the Court of Justice of the European Union (CJEU) ruled that its decisions are the supreme law, trumping national law, even national constitutional law, in the areas in which the CJEU has jurisdiction. It’s not clear what the legal basis for this ruling was but it is now a fait accompli. Some participants seemed to understandably chafe at this arrangement.
Next, in Hungary there is no fixed path for appeals. A litigant may appeal from a county court to the Supreme Court, bypassing the appeals court. Or the litigant could bypass the Supreme Court and go straight to the Constitutional Court (for a constitutional claim). Or the litigant could bypass both the Supreme Court and the Constitutional Court and appeal directly to the CJEU. Even a litigant in the lowest level local court may appeal directly to the CJEU. One could view this flexibility as facilitating forum shopping, which our system looks down on, or as a way of empowering litigants to go where they think they can win.
Finally, in Hungary the courts are not bound by precedent. A court may depart from a prior ruling if it sufficiently explains itself. Four years ago the Supreme Court adopted a reform requiring the Court to adhere to its own prior precedents. Other than that, there is no formal system of precedent. I found this divergence from our common law system particularly jarring. Adherence to precedent seems fundamental to ensuring the equal protection of law, including for private disputes. Yet the absence of a formal system for affording precedential value to prior cases is a feature of European civil law systems. It seems that ours is not the only way to skin a cat.