Judicial Civil Disobedience, the Limitations of Portia, the Futile Radicalism of Antigone, and the Wisdom of Cato

Abstract

The diffusion of populist regimes appears destined to have a lasting impact on the fundamental structures of the constitutional state.

Thus, the doctrine has adopted an approach of “constitutional resilience”. One such example is the “Heidelberg proposal”, which proposes the creation of a juridical bypass that would allow the ordinary Hungarian judges to disapply laws and avoid subordinance to a “captured” and populist Constitutional Court. In a similar reaction to the Polish government, the doctrine has suggested the adoption of institutional civil disobedience by coordinating judges to refuse to apply populist regulations.

This last proposal is ideologically consistent with the consolidated constitutional tradition inspired by John Locke. Nevertheless, it also seems fraught with negative implications that should not be overlooked. This paper will show the theoretical contradictions and the obstacles to the practical implementation of the civil disobedience of judges.