The workshop “Complicity – Conceptual, Ethical and Legal Issues”, organised by the Society for Applied Philosophy and the GAP Gesellschaft für Analytische Philosophie, was held at Charles University in Prague on 22-24 May. At the invitation of the organisers, his talk entitled: ‘Judicial Complicity, Acquiescence, and Resistance: Moral (and Legal) Responsibility under Non-democratic Regimes’ was delivered by Mateusz Grabarczyk.
More information can be found at: https://complicity.weebly.com/ and https://philevents.org/event/show/130550.
Abstract:
In contexts of rising undemocratic policy, courts often play a paradoxical role: while they are expected to safeguard rights and constitutional norms, they may also enable or legitimise nondemocratic regimes. This paper examines the moral and legal responsibility of judges operating within nondemocratic regimes, focusing on three proposed normative attitudes: complicity, acquiescence, and resistance. Drawing on comparative case studies from transitional justice and contemporary democratic backsliding, I suggest that complicity entails active legitimation of undemocratic policies; acquiescence involves passive acceptance and institutional conformity; and resistance, under certain conditions, represents not only an ethical stance and is not merely permissible but may constitute a moral – and sometimes even legal – duty. While complicity is often intentional, acquiescence frequently arises from structural pressures, fear, or internalised professional norms such as the ideology of judicial “antipoliticism.” These non-intentional forms of complicity raise critical ethical questions about omission, silence, and institutional loyalty. Building on the concepts of judicial disobedience, public reason, and the culture of justification, and referencing recent ECtHR and CJEU jurisprudence (e.g. Baka v. Hungary, Żurek v. Poland), I argue that when fundamental rights and the independence of the judiciary are under systemic threat, responses to complicity, especially resistance are moral and may become a professional obligation grounded in the rule of law. This analysis highlights the blurred line between legal fidelity and moral failure, questioning whether judicial restraint in such contexts is a form of complicity and what kinds of reasoning, virtues, and institutional conditions are needed to support responses to complicity and judicial integrity in times of crisis.
