Judicial Formalism and Regional Legal Identity in Central and Eastern Europe

Post-communist Central and Eastern European judicial style in particular are often characterized as formalistic, mechanical or (hyper-)positivistic. In this way, judicial method (seen internally or doctrinally), attitudes and style (seen externally or sociologically) are taken as characteristic of a regional legal identity, representing the distinctness of CEE legal cultures. This distinctness thesis is expressed in two competing ideological narratives about the formalist heritage of CEE judiciary. The first narrative condemns judicial formalism as a feature of backwardness, the other celebrates it as a Sonderweg of CEE legal culture. These narratives construe the debate about adjudication, formalism, and the rule of law ideologically: as battleground for controversies about collective (political or legal) identity. While the authoritarian turn in the region gave rise to new variants of these narratives, the search for a distinctive feature, i.e. the urge to belong to a special regional group, defined in relation to ‘the West’, seems to persist. This pattern of ideological thinking can be seen as symptomatic of CEE political cultures yet also exemplifies a broader phenomenon of weak or peripheral cultures defining their identity in opposition to a regional/imperial/global centre. This urge may be overcome pragmatically or performatively by either zooming in: paying attention to intra-regional differences, or zooming out: noticing that while the non-democratic character of adjudication invites a formalist rhetoric, formalism is one of the techniques in the argumentative repertoire of modern courts around the world which they deploy for various purposes.