The Rule of Law and the Challenges to Jurisprudence

Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012

by Péter Cserne (Volume editor) Miklós Könczöl (Volume editor) Marta Soniewicka (Volume editor)
©2014 Conference proceedings 148 Pages


Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author(s)/editor(s)
  • About the book
  • This eBook can be cited
  • Contents
  • Contributors
  • Editors
  • Introduction
  • Part I Re-reading the Classics
  • The Relationship of Natural Law and Natural Rights: Organic, Contingent, or Logically Contradictory?
  • Introduction: two fundamental questions
  • Two diametrically opposed answers
  • The conventional story
  • The alternative story
  • Conclusion
  • References
  • International Coercion and the Requirement of an International Rule of Law
  • Introduction
  • Defining the rule of law
  • The international vs. the national realm
  • An international rule of law
  • Back to the basics: The relationship between law and coercive power
  • The international rule of law reconsidered
  • Conclusion
  • References
  • Part II Jurisprudential Methodology
  • Introduction
  • ‘Law’
  • The Subject Matter of Jurisprudence
  • ‘Nature’
  • Conclusion
  • References
  • Is ‘Naturalised’ Methodology in Legal Theory Helpful?
  • Introduction
  • The subject of legal theory
  • Stages in the construction of analytical legal theory
  • Conceptual analysis
  • Methodological naturalism
  • Concluding remarks: The usefulness of modest methodological naturalism
  • References
  • Part III Legal Reasoning and Objectivity
  • Objectivity as Coherence in Practical Discourse
  • Introduction
  • Methodology: the bottom-up approach
  • ‘Meaning in use’ based on Langacker’s cognitive grammar
  • Objectivity of law vs. objectivity in law
  • Objectivity as ‘legal argument’
  • Conclusion
  • References
  • Court rulings
  • Court of Justice of the European Union
  • Poland
  • Supreme Court of Poland
  • Polish Constitutional Tribunal
  • Supreme Administrative Court
  • Courts of Appeal
  • Voivodship Courts
  • Part IV Judiciary, Legitimacy, Democracy
  • Within Democracy’s Reach? Revisiting Some Objections to Judge-made Law
  • Introduction
  • The foundations of the objection
  • Providing context and limiting the scope of the objection
  • Can judge-made law fit our constitutional design? (Re)interpreting constitutional and political doctrines
  • Conclusion
  • References
  • Cases
  • Slovenian Constitutional Court
  • A New Trend in the Debate on Justifying Judicial Review: Considering the Benefits of Judicial Reasoning
  • Introduction
  • A procedural response to the institutional question
  • Waldron’s arguments against the judicial mode of moral reasoning
  • The benefits of judicial decision-making in constitutional issues
  • Conclusion
  • References
  • Cases
  • Hungarian Constitutional Court
  • Between Reflexivity and Effectiveness: Dilemmas of the Democratic Legitimacy of Constitutional Justice
  • Introduction
  • Transformation of the public sphere and the concept of legitimacy
  • The difficulties of judicial supremacy: in search for a constitutional judge’s legitimacy
  • The deliberative turn in the theory of democracy
  • Constitutionalism as good governance: towards output legitimacy and effectiveness
  • Reflexivity as the missing link
  • Two dimensions of reflexivity
  • References
  • Part V The Boundaries of Criminal Justice
  • Shielding Criminal Justice from Politics
  • Introduction
  • Direct public involvement as a generator of punitiveness
  • The benefits of shielding
  • Unexplored consequences
  • Conclusion
  • References
  • Introduction of Criminal Law Powers in Other Legal Procedures: A Convenient Bypass for Obtaining Evidence?
  • Introduction
  • Border powers
  • The inviolability of dwellings and privacy and personality rights in the Constitution of Slovenia
  • The Relationship between the State Border Control Act and the Criminal Procedure Act
  • Conclusion
  • References
  • Legislation
  • Cases
  • Slovenia
  • United States
  • European Court of Human Rights

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Luka Burazin assistant professor, University of Zagreb, Croatia

Goran Dajović assistant professor, University of Belgrade, Serbia

Krzysztof J. Kaleta assistant professor, University of Warsaw, Poland

Ágnes Kovács PhD student, University of Debrecen, Hungary

Mojca M. Plesničar researcher, Institute of Criminology, University of Ljubljana, Slovenia

Verena Risse PhD student, Johann Wolfgang Goethe University, Frankfurt am Main, Germany

Lidia Rodak lecturer, University of Silesia, Katowice, Poland

Tilen Štajnpihler assistant lecturer, University of Ljubljana, Slovenia

Szilárd Tattay assistant professor, Pázmány Péter Catholic University, Budapest, Hungary

Sabina Zgaga assistant professor, University of Maribor, Slovenia


Péter Cserne senior lecturer, Hull University, UK

Miklós Könczöl assistant lecturer and librarian, Pázmány Péter Catholic University, Budapest, Hungary; PhD student, Durham University, UK

Marta Soniewicka assistant professor, Jagiellonian University, Kraków, Poland

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This volume is the third in the series of the Central and Eastern European Forum for Legal and Social Theory Yearbooks.

The Forum is an initiative for the cooperation and exchange of ideas among young Central and Eastern European scholars working in the field of legal, political and social theory. It has grown out of a conference held in 2009 in Katowice, Poland, where some of the participants have come to realise that the meeting filled a real gap. The next step was to make the meetings regular and the Forum at least minimally institutionalised.

Establishing the Forum was a response to the dominance of Western European and American scholarship in the field: not so much an attempt to build up a counter-power but to reflect on our problems and to articulate our views in a distinct voice. At the same time, it was also an endeavour to connect those new cohorts of academics whose career started at or after the turn of the millennium. The idea to form a group with a regional and generational character was further stimulated by the need to build a network of researchers who often live in close proximity without knowing of each other’s work. Being part of a diverse and respectful scholarly community where intellectual freedom and honesty reign over hierarchy and cynicism is an experience that is regrettably uncommon in today’s academia – and it is what the Forum strives to facilitate.

Apart from a vigorous online presence (www.cee-forum.org), the key activity of the Forum is to organise annual conferences that give an opportunity for junior scholars coming from or conducting research on this region of Europe to present their work before an international audience of peers. After Katowice, the conferences have taken place in Budapest, Belgrade, Celje, and Greifswald, each followed by the publication of select papers presented at the Forum.

The ten papers in this volume, selected by the Forum Board and edited by three of its members, were presented and discussed on the 23rd and 24th of March 2012 at the 4th Forum in the beautiful historic town of Celje in Slovenia. The conference provided a platform for a lively and academically rigorous debate on matters that are just too important to be left to politicians. The main topic was ‘Reconsidering Democracy: (New) Theories, Policies and Social Practices’, thus putting a special emphasis on recent controversies around democracy. The discussion also covered other key issues in legal, political and social theory relevant in this region or more broadly. As reflected in this volume, many of them have been concerned with the meaning and implications of the rule of law. The 4th Forum was convened ← 9 | 10 → by Dr. Andraž Teršek from the University of Primorska, and hosted by the International School for Social and Business Studies, with the local organisation in the able hands of Marko Smrkolj. We would like to thank them for their enthusiasm and hard work.

The generation for which, at least in most countries of the region, the pre-1989 authoritarian heritage belongs to the past and the term ‘Europe’ appears as a symbol of powerful political and legal ideals, had more than enough opportunity over the last two decades to realise that neither democracy nor the rule of law can be taken for granted. It seems that when it comes to these two concepts, the unease of many Central and Eastern Europeans is not simply due to a mismatch between ideals and reality or theory and practice. Rather, the malaise stems from a realisation that in spite of many advantages we enjoy simply by virtue of having grown up around or after 1989, this is no time to sit back. If we as scholars and citizens want to think and speak clearly about or effectively take a stand for our political and legal ideals, we need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument, reformulating old concepts and categories, and problematising established patterns of thought.


ISBN (Softcover)
Publication date
2014 (May)
constitutionalism Strafjustiz Rule of Law Verfassungsgericht Rechtsstaatlichkeit
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2014. 148 pp.

Biographical notes

Péter Cserne (Volume editor) Miklós Könczöl (Volume editor) Marta Soniewicka (Volume editor)

Péter Cserne is senior lecturer in law at the University of Hull (UK). Miklós Könczöl is assistant lecturer at the Faculty of Law and Political Sciences at Pázmány Péter Catholic University in Budapest (Hungary). Marta Soniewicka is lecturer at the Faculty of Law and Administration at Jagiellonian University in Kraków (Poland).


Title: The Rule of Law and the Challenges to Jurisprudence