When social policy walks into the justice system...

Abstract

This paper aims to elaborate on the dilemmas Hungarian courts face when they appear in the forefront of policy implementation. Firstly, what kind of (legal) sources and documents should the court involve in in its legal interpretation? Secondly, what are the trade-offs between offering effective remedy sanctions and respecting the differences between branches of law and the division of power? For purpose of this analysis, we turn to the example of school segregation lawsuits between 2007 and 2022. In terms of equal and equitable education, the regulatory frameworks in the CEE Countries are harmonized to the EU standards and are strongly based on the anti-discrimination approach. In theory, policy programs and documents could be used as a source of facts, as well as a source of information regarding legislative goals and policy context. In theory, courts should aim to opt for sanctions with the most potential to achieve effective remedy. If this leads to specific policy-type sanctions, within the bounds of the parties’ actions courts should be able to decide so. However, courts tend to refrain from such sources and decisions. In the context of democratic backsliding the possibilities of such activism are somewhat unclear. Issues around the independence of the judiciary, the attitude of the executive branch towards certain social policy issues, and the practice of overwriting by amendment on part of the National Assembly supermajority may discourage courts and judges from policy-sensitive or innovative adjudication of cases with social policy relevance.