Judges’ Freedom of Expression and the Reasonable Observer Test in International Soft Law: Relevant Documents, the Operationalization of the Test and the Scale of Expectations Placed on It
Judges’ Freedom of Expression and the Reasonable Observer Test in International Soft Law: Relevant Documents, the Operationalization of the Test and the Scale of Expectations Placed on It

Summary/Abstract: The paper aims to discuss the reasonable observer test as a tool for assessing judges’expression. The argument begins by analyzing the relevant provisions of international soft law, as inscribed in the instruments developed and adopted by the CoEand the UN. Subsequently, an operationalization of the test is proposed by identifying the factors to be taken into account in the application of the test. In thefollowing step, the expectations placed on the reasonable observer test are addressed,whereby the juriscentric (“strong”) and post-analytical (“weak”) positions areoutlined. The former relies on Artur Kozak’s law-philosophical conception, andthe latter is underpinned by the topography of juristic power developed by PawełJabłoński and Przemysław Kaczmarek. The paper makes the case for the post-analytical approach, which places rather modest expectations on the reasonable observertest and considers it instrumental in structuring the discussion, rather than yieldingindisputably reliable conclusions.

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