Formalism in Judicial Reasoning: Is Central and Eastern Europe a Special Case?

In both practitioners' comments and the academic literature on the Europeanisation of Central and Eastern European (CEE) legal cultures, there has been a general understanding and much lament about the persistence of certain features of legal thinking of the socialist era among the judiciary after 1989 and even after 2004. The core claim is that compared to fundamental changes in substantive law, judicial practices resist any rapid change and cultural patterns of the late socialist period still characterise judicial reasoning and style. ¹ In particular, the judicial style in CEE is often characterised as formalistic, magisterial, terse and deductive. ² Post-communist CEE is sometimes called ‘ the last bastion ’ of formalism. ³
This chapter advances two points. The first is a general observation about the difficulties of discussing judicial formalism in CEE. I will suggest that it is symptomatic of CEE political cultures that the debate has been conducted in simplified and misguided terms, and historical and normative claims are often mixed. My first point is preliminary to the second one which concerns the terms and methods that may be useful when pursuing either empirical analysis or normative arguments about judicial formalism in CEE. Current empirical research and quasi-empirical writings on the alleged formalism suffer from conceptual and methodological difficulties