From 'Civil Society' to 'Europe' (International Studies in Sociology and Social Anthropology)

From ‘Civil Society’ to ‘Europe’

International Studies in Sociology and Social Anthropology Series Editor

David Sciulli† Editorial Board

Vincenzo Cicchelli, Gemass, Paris 4/CNRS, Paris Descartes University Benjamin Gregg, University of Texas at Austin Carsten Q. Schneider, Central European University Budapest

VOLUME 118

From ‘Civil Society’ to ‘Europe’ A Sociological Study on Constitutionalism after Communism

By

Grażyna Skąpska

LEIDEN • BOSTON LEIDEN • BOSTON 2011

Cover illustration: Courtesy of the Constitutional Tribunal, Warsaw, Poland. This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Skapska, Grazyna. From “civil society” to “Europe” : a sociological study on constitutionalism after communism / by Grazyna Skapska. p. cm. -- (International studies in sociology and social anthropology, ISSN 0074-8684 ; v. 110) Includes bibliographical references and index. ISBN 978-90-04-19207-2 (hardback : alk. paper) 1. Poland--Politics and government--1989- 2. Poland--Social conditions--1980- 3. Europe, Central--Politics and government--1989- 4. Europe, Eastern--Politics and government-1989- 5. Constitutional history--Poland. 6. Constitutional history--Europe, Central. 7. Constitutional history--Europe, Eastern. 8. Post-communism--Poland. 9. Postcommunism--Europe, Central. 10. Post-communism--Europe, Eastern. I. Title. II. Series. JN6760.S56 2011 320.9438--dc22 2011004028

ISSN 0074-8684 ISBN 978 90 04 19207 2 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke€Brill€NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

And it seems to me that a civil society, based on the universality of human rights, can best allow us to realize ourselves as everything we are – not only members of our nation, but members of our family, our community, our region, our church, our professional association, our political party, our country, our supranational communities – because it treats us chiefly as human beings whose individuality finds its most primary, most natural, and most universal expression in citizenship, in the broadest and deepest sense of that word. The sovereignty of the community, the region, the nation, the state – any higher sovereignty, in fact – makes sense only if it is derived from the one genuine sovereignty – that is, from the sovereignty of the human being which finds its political expression in civil sovereignty Vaclav Havel, Summer Meditations on Politics, Morality and Civility in a Time of Transition, Faber and Faber: London 1992.

Dedicated to the memory of Jaś Skąpski

Contents Acknowledgements╇ ����������������������������������尓������������������������������������尓����� â•… xiii Introduction: The Objectives of this Book╇ ����������������������������������尓��� ╅╇╛╛1 â•…Constitution and constitutionalism: a sociological â•… approach╇ ����������������������������������尓������������������������������������尓�������������� ╅╇╛╛5 Postcommunist dilemmas and sources of popular â•… frustration╇ ����������������������������������尓������������������������������������尓������������ ╅╛╛10 Theoretical background╇ ����������������������������������尓����������������������������� ╅╛╛15 Empirical context╇ ����������������������������������尓������������������������������������尓���� ╅╛╛18 Prologue: Between “Civil Society” and “Europe”: Round Tables in East Central Europe as Political and Legal Events╇ ��������������� ╅╛╛23 Round tables as political events╇ ����������������������������������尓���������������� ╅╛╛27 Round tables and the legality of the transformations╇ �������������� ╅╛╛37 Constitutional outcomes of round tables╇ ����������������������������������尓 ╅╛╛43 Consequences of the round tables in subsequent change╇ ������� ╅╛╛48 I╇ A Constitution as a Theory of Society within Society╇ �������������� ╅╛╛51 Postcommunism critiqued╇ ����������������������������������尓������������������������ ╅╛╛53 Constitutional instrumentalism╇ ����������������������������������尓���������������� ╅╛╛57 The “Empty Space” proposition as justification of â•… constitutional instrumentalism╇ ����������������������������������尓������������ ╅╛╛61 Non-fictive, context-bound reflexive constitutionalism╇ ���������� ╅╛╛65 A constitution as a theory of society within society╇ ����������������� ╅╛╛72 Constitutional instrumentalism versus the reflexive â•… approach to the constitution╇ ����������������������������������尓����������������� ╅╛╛77 II╇ Stalinist Constitutionalism╇ ����������������������������������尓����������������������� ╅╛╛81 Typical features of Stalinist constitutionalism╇ �������������������������� ╅╛╛82 Theoretical foundations of the Stalinist political system╇ ��������� ╅╛╛86 Axiology of Stalinist constitutionalism╇ ����������������������������������尓���� ╅╛╛91 System legitimization: the unarticulated social contract â•… and negative constitutional consensus╇ ��������������������������������� ╅╛╛╛╛94

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╛╛╛╛Stalinist constitutionalism and the need for a new â•… constitutional semantics╇ ����������������������������������尓��������������������� ╅╇ 98 III╇In Search of a New Semantics: Discursive Resources of â•… Postcommunist Constitutionalism╇ ����������������������������������尓��� â•… ╇Recent constitutional history: the context for democratic â•… constitutionalism╇ ����������������������������������尓��������������������������������� â•… ╇Recent constitutional history in its narrow sense╇ ������������������ â•… ╇The return of civil society, reintroduction of morality, â•… and renaissance of history in the public sphere after â•… the Gulag experience╇ ����������������������������������尓�������������������������� â•… ╇ Interpretations of the rule of law╇ ����������������������������������尓����������� â•… ╇The Eastern European syndrome: a brief outline of â•… difficult legacies, old and new╇ ����������������������������������尓������������ â•… ╇ The semantic endowment of the new constitutions╇ �������������� â•… IV╇Settling Accounts with the Past and the Dilemmas of the â•… Law-Governed State╇ ����������������������������������尓��������������������������� â•… ╇The constitutive potential of the difficult past: the right to â•… truth, to remembrance, and to restitution of property â•… rights as part of identity restoration╇ ����������������������������������尓� â•… ╇ Two legacies of Stalinist totalitarianism╇ ��������������������������������� â•… ╇Structural and mental legacies of the semantics used â•… to legitimize state crimes╇ ����������������������������������尓�������������������� â•… ╇ Legacies of mass scale expropriations╇ ����������������������������������尓��� â•… ╇Knowledge as power: the paradoxes of democracy and â•… model approaches╇ ����������������������������������尓�������������������������������� â•… ╇ Dilemmas of the law-governed state principle╇ ���������������������� â•… ╇“Alienating justice” or a positive constitutional â•… consensus?╇ ����������������������������������尓������������������������������������尓�������� â•… V╛╇Dividing the Cake: The Constitutionalization of â•… Economic Order╇ ����������������������������������尓����������������������������������� â•… ╛╛╛╛Privatization in the eyes of economists and sociologists╇ ������ â•… ╛╛╛╛Institutional optimism and sociological realism╇ ������������������� â•… ╇Anarchy, semi-legalized anarchy, and blurring the line â•… between state-owned and private property╇ ������������������������ â•… ╇The constitution versus mundane economic processes after â•… the collapse of communism in East Central Europe╇ �������� â•…

101 103 108 114 119 123 128 133 136 142 147 153 160 170 178 185 190 196 203 212



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Conclusions: written constitutions and emerging ╅ realities╇ ����������������������������������尓������������������������������������尓���������������� ╅ 217 Summing Up:╇ Thirteen Theses on Postcommunist Constitutionalism╇ ����������������������������������尓������������������������������������尓�� ╅ 221 Appendix One Election Participation in Eastern Europe╇ ��������������������������������� ╅ 235 Appendix Two Satisfaction with Democracy in Eastern Europe╇ ��������������������� ╅ 236 Appendix Three Satisfaction with the Actually Realized Model ╅ of Democracy in Particular Countries╇ ��������������������������������� ╅ 237 Appendix Four Comparison of Evaluations of Democracy and Market ╅ Economy in Action in Particular Countries╇ ������������������������ ╅ 238 Bibliography╇ ����������������������������������尓������������������������������������尓���������������� ╅ 239 Index╇ ����������������������������������尓������������������������������������尓���������������������������� ╅ 251

Acknowledgments This book represents the results of research that ran the course of many years. Its initial ideas, especially those concerning the moral and semantic aspects of constitutions shaped after the collapse of a totalitarian or dictatorial regime, were already formed during my stay at the Wissenschaft Zentrum zu Berlin in 1996. They were subsequently developed at the Collegium Budapest, Institute for Advanced Study where – thanks to the most exquisite intellectual atmosphere created by its staff, and the friendly assistance of its Rector at that time, Professor Lajos Vekas, of its Director, Dr. Fred Girod, and of Professor Petr Paczolay, then adviser to the Hungarian Constitutional Court – I could investigate the formation of Hungarian constitutionalism. Later, during my semester as a Visiting Professor at Cornell University Law School, I enjoyed the most invigorating debates with students of my seminar on constitutionalism and social progress. During my stay at the American Bar Foundation in Chicago in 2001, it was also possible to investigate a legacy which postcommunist constitutionalism has had to face: the restitution of nationalized property. My special gratitude is owed to Bryant Garth, Director of the Foundation, to Terry Halliday, Carol Heimer, Christopher Tomlins, and Susan Shapiro for their intellectually stimulating debates, and to Roz Caldwell, thanks to whom I felt at home at the ABF. Further, I am greatly indebted to all whose friendly criticism facilitated reflection upon some more spontaneous ideas – Piotr Sztompka, Andras Sajo, Martin Krygier, Kim Lane Scheppele number among the many other friends important to this book. The most important assistance in reviewing this manuscript was lent by Annamaria Orla-Bukowska. Last, but certainly not least, I am deeply obliged to my close personal friends who helped me overcome the most dramatic and saddest events in my life which coincided with my work on this book. Needless to say, all its shortcomings are my own responsibility.

Introduction

the objectives of this book This study aims at a sociological analysis of constitutionalism after the collapse of the communist regimes in East Central Europe (ECE) on the verge of the 21st century.1 Because of their range and scope, as well as their social context and political consequences – European and global – these events are easily compared to earlier, historical events and processes that took place in Europe. The end of the 18th century witnessed the final phase of the earlier epoch of feudalism, and the realignments, territorial changes, shifts of alliances, and, above all, the social transformation these phenomena entailed. This chain of events culminated (symbolically and in fact) in the French Revolution; its more contemporary counterpart was the series of relatively peaceful overthrows of communist governments in the 1980s and 90s. The similarity between the revolution in France and the revolutions in East Central Europe consists in the fact that, then and now, the collapse of the former regime and the installment of a new, more liberal one was not imposed by some enlightened rulers (perhaps with the exception of the former Soviet Union), and not from outside (by victorious armies, for instance), but predominantly as a result of the workings of internal factors. The greatest role in the collapse of feudalism as well as of communism was played by society – the third estate in the former case, and the dissident intellectuals as well as underground movements and civic organizations in the latter.

1 ╇ By “East Central Europe” the region is usually understood as composed of Poland, the Czech Republic, Slovakia, Hungary, and Slovenia as well as the Baltic states: Lithuania, Latvia, and Estonia. All of them are influenced by Latin culture; they use the Latin alphabet and accepted Roman Christianity and the Roman concept of law. They have all undergone past experience with Western-style democracy and constitutionalism, as well as with Soviet-style totalitarianism. This book is focused on analysis of the emerging constitutionalism of the four countries – Poland, the Czech Republic, Hungary and Slovakia – that collaborate within a loose organization called The Visegrad Group (named after a Hungarian castle where the first meeting of the heads of these countries took place in the 14th century) precisely because of an assumed similarity of experiences, interests, and cultures.

2

introduction Indeed, as has been observed: The socially most astonishing and surprising (…) phenomenon of the 1980s was the unexpected renaissance of a political subjectivity, outside and inside the institutions (…) [T]he themes of the future which are now on everyone’s lips, have not originated from the farsightedness of the rulers or from the struggle in parliament – and certainly not from the cathedrals of power in business, science and state. They have been put on the social agenda against the concentrated resistance of this institutional ignorance by entangled, moralizing groups and splinter groups fighting each other over the proper way, split and plagued by doubts (Beck in Beck, Giddens, Lachs 1994: 21).

According to the quoted author, and many others writing on the “new social subjectivity,” or agency that emerged in Eastern Europe in the 1980s, it would be the civil society in its political form that contributed to the formation and consolidation of democratic-liberal constitutionalism after the fall of communism. However, the question remains as to the extent to which the activity of civil society correlated with other factors in the systemic collapse, especially with its political mechanisms, and to what extent the emerging, postcommunist constitutionalism presents a response to civic society expectations.2 It should also be stressed already in the introduction of this book that this “new social subjectivity” was important also because the attitudes of the external world, of the world leaders, prime ministers and presidents of the most powerful nations toward any deeper political changes and shifts were apprehensive, if not hostile, as we learn now, after twenty years later. This factor was crucial, and certainly it influenced the course of events, and the self-limitations imposed on themselves by the democratic dissidents. In Eastern Europe, the scope and range of the shifts were enormous and, considering only their geo-political dimension, one can easily see that the events of the last two decades of the 20th century were even greater and broader than the liberalization and democratization initiated more than two centuries earlier. After 1989, some seventy five million people in Central and an additional more than two hundred million in Eastern Europe experienced such changes; the geo-political ╇ Here one should not forget that civil society in Eastern Europe belonged to weak actors confronted with the strongly organized political sphere of the communist system. However, it was exactly the activities of these weak actors which eventually led to the destruction of the system. On the debate regarding a “double public sphere” composed of “civil” and “political” components, in connection with Habermas’ theory see Arato 1996: 787. 2



the objectives of this book

3

map of the continent was altered dramatically. New countries emerged in its central, eastern, northern and southern regions, and some old ones ceased to exist. We witnessed the collapse of an imperial power, “velvet divorces,” as well as re-unifications; the realignments have been not only European but, in fact, global. Territorial changes and shifts in€ alliances followed closely, one after another in the immediately succeeding years. As a result of the relatively successful consolidation of democracy and reformations of economies, eight Central European countries were accepted as members of the European Union in the year€2005, and a further two in 2007 – events entirely unforeseen only several years ago. At the same time, however, a noticeable and considerable disenchantment with democracy and the market economy were€ observed – a growing distrust in public institutions, populism, and apathy. These outcomes were unforeseen at the beginning of the transformation. The French Revolution, the events which took place in the United States at about the same time, and the Glorious Revolution in England were characterized by new, powerful ideas about political and social order, and new concepts of citizenship, civic rights, and liberties. Hopes and expectations nurtured by their participants were elaborated€ into political institutions, and enshrined in constitutional arrangements. Yet one wonders about the contributions the peaceful post-1989 revolutions have made to the development of liberal constitutionalism, the imprint they have left on constitutional provisions, and their impact on the development of ideas regarding justice, civic and human rights, and human dignity – the topical issues of the “peaceful revolutions.” There is a question as to whether the communist and postcommunist experiences yielding new constitutions are importing new meanings and/or adding new dimensions to the project of liberal democracy. This issue is even more important in the new, enlarged European Union. One thing is certain, recent experiences with totalitarianism – as well as the direct and dramatic experiences with military interventions and the crushing of democratic aspirations in Hungary in 1956, in Czechoslovakia in 1968, and the threat of military intervention in Poland in 1956 and 1981 – would not go without leaving a permanent trace on the consciousness and political and legal cultures of the people involved, making them more sensitive to some constitutional issues, such as fundamental human rights violations, promises of justice, and the rule of law. One should not forget about the very imposition of communism in the 1940s when hundreds of thousands were killed, or deported to Siberian gulags, or simply disappeared.

4

introduction

Thus, twenty years after the initial changes, and only little less after the first democratic constitutions were proclaimed, it is a time to analyze the formation of constitutionalism after communism: a process originally aimed at the political expression of civil sovereignty, so aptly phrased by Vaclav Havel, one of the most prominent Eastern European thinkers and statesmen. Considering the goals and their results in their current form, one should not forget, too, that postcommunist transformation does not represent an unwavering, linear change from one point of history – communist totalitarianism, or Stalinism – to another, a well-defined and unproblematic liberal democracy. On the contrary, one should remember that it is as much an open process as democracy is an open project. Especially the changing ideas and concepts about the rule of law, human and civic rights, political power, the government, and the state contribute to a vision of liberal democracy as an unfinished project of great potential, rooted in the ideas of citizenship, freedoms, and liberties that have been developing over centuries in a never-ending process. It must also be kept in mind that the new, postcommunist constitutions are proclaimed in a time of accelerated global change entailing growing international cooperation, and the formation of international or transnational legal orders. This means growing complexity, a considerable ambiguity and uncertainty with regard to the trajectories of the liberal democracy, and new self-definitions of political societies emerging out of communism. Moreover, in contrast to the French Revolution especially, the socalled “refolutions” (a hybrid of “revolution” and “reform”) in Eastern Europe – preceded by the overthrows of authoritarian regimes in South-Western Europe, in Spain and Portugal – were of an astonishingly peaceful nature which fact was enthusiastically applauded by neighboring countries. The “refolutions” were characterized by the lack€ of a clear rupture in the modern world. Moreover; here it was not€ politics, but law and economy which played the leading role, forming the “new orthodoxies” of the rule of law, and economic neo-liberalism. Therefore, it is interesting to investigate how these pressures from the bottom up and from the outside, the lack of clear rupture or rituals of passage, the specific experiences with totalitarianism, the already mentioned new orthodoxies, and the involvement in transnational (and above all European) cooperation have all contributed to the development of postcommunist constitutionalism, once initiated by dissenting groups of citizens. Linking the internal legal order with the external,



the objectives of this book

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international one, especially with respect to human rights protection, postcommunist constitutions are of singular importance in posttotalitarian societies; they constitute the initial steps in the redirection of the entire legal order from one that is “nation” or “state” or “systemoriented” to one focused on the rule of law, and human and civic rights protection. Constitution and constitutionalism: a sociological approach Constitutions are not mere arrangements of the division of powers; they are understood as “public symbols” and “birth certificates” of modern nations, and their proclamations as turning points in the nation history. Such an understanding clearly indicates some crucial social values reflected in the constitution, some social processes which culminate in its proclamation, and the reciprocally structurating effects of a constitution on the development of the newly born politically organized nation. As the moral and social philosopher Hanna Pitkin argues, constitutions are something that we have that we are and that we do; they reflect “the action or activity of constituting – that is, of founding, framing and shaping something anew” (Pitkin 1987: 168). Constitutions however not only reflect constituting, they also reflect the ways of thinking, and in this way they present a historically accumulated collective wisdom and experience, presently, in sociological theory called “cultural capital.” A modern constitution has a complex structure. It consists of regulations on the structure of government, of provisions defining human, civic, social and cultural rights, of principles of society’s involvement in the government – in various forms of public legislative initiative, referenda, and constitutional legal actions open to citizens – as well as of provisions referring to the relationships between the national constitution and international covenants and treaties. Additionally, constitutional adjudication in ECE is sometimes called an “invisible constitution” because of the great impact of procedural justice on the development of the legal order and its coherence with constitutional principles, and above all because in the judgments and verdicts of constitutional courts and tribunals the fundamental constitutional principles are formulated or their understanding clarified (Sajo1995). Also in this respect the international dimension of modern constitution should be stressed, especially the direct implementation of the verdicts of supranational

6

introduction

courts and tribunals – in the case of European Union first and foremost the verdicts and judgments of the European Tribunal of Human Rights, and the European Tribunal of Justice. There is also an important socionormative, semantic and communicative dimension of the constitution. From the point of view of sociological analysis, the latter is of particular interest – the symbols and meanings to which constitutional provisions appeal and to which they refer. Composed of open-ended and polysemic rules and principles – such as the rule of law, or the law-governed state, human dignity, social justice, human rights, protection of property rights, of freedoms and liberties – constitution either appeals to the existing resources, democratic traditions, and norms of public morality, to the existing symbols and meanings, or it helps to form them anew. In this way a modern constitution and constitutional adjudication provide a language and help society to communicate on matters of public concern, to define important phenomena and processes, and eventually reach a constitutional consensus. As it was once observed by Cass Sunstein, the constitution in particular, and the law, in general, bear an important expressive function because of the statements legal provisions make, as opposed to the functions of the law in directly controlling behavior (Sunstein 1996: 66). Because of those statements inherent in constitutional provisions, in this book the constitution will be defined as a theory of society about itself, as a complex set of meaningful symbols and of concepts thanks to which the society is able to define itself. As already stressed, significant for sociologists are the cognitive and symbolic dimension and the charismatic quality of the constitution, as well as the reasons justifying it and facilitating interpretation of openended constitutional provisions. Informing public discourse, they are crucial for the formation of a positive constitutional consensus, i.e. of an overlapping social consensus on the principles of sociopolitical order, and on the interpretation of fundamental rights. This symbolic dimension is usually reflected in the constitution preamble and its most crucial provisions – its opening norms. In the Preamble of the 1997 Polish Constitution one can read that its framers were “Beholden to our ancestors for their labors, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values”; its framers were “Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland,” and recognized “Our responsibility before God or our own consciences.” According to this



the objectives of this book

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Preamble, the Polish constitution comprises “the basic law of the State, founded on respect for freedom and justice, cooperation between public powers, social dialogue as well as on the principle of strengthening the powers of citizens and their communities.” This Constitution also refers to the Republic of Poland as “the common good of all citizens” (Art. 1). The Preamble of the Czech Republic 1992 Constitution declares the Republic a “…part of the family of European and world democracies,” “Home of equal and free citizens resolved to abide by all time tried principles of a law-observing state” and the “principles of civil society”; according to declarations in the Preamble to the 1992 Constitution of the Republic of Slovakia, it presents the “spiritual heritage of Cyril and Methodius,” and the “historical legacy of the Great Moravian Empire.” It should protect “Free life and the development of spiritual culture and economic prosperity” of Slovak society. Only in the Hungarian Constitution is the preamble dry and succinct. This constitution – meant as an amendment to the 1949 one – was not intended as the “birth certificate” of a new, democratic nation, but rather a way to facilitate a “peaceful political transition to a constitutional state.”3 As for the opening constitutional provisions, the opening norms of the constitution it should be stressed that in all postcommunist constitutions this function play the provisions referring to the rule of law, or rather, the law-governed state. The symbolic dimension is closely linked to the performative and structural. Therefore, in this view, the constitutional symbolism and constitutional rhetoric are of great importance for the emerging postcommunist society. The constitutional rhetoric, as well as the semantics of constitutional provisions, the meanings of constitutional principles interpreted by constitutional courts, subsequently repeated in public debates and used by citizens – all carry great potential in shaping the popular perceptions of postcommunist reality. Hence, in post-Soviet Europe – in contrast to the Western wellestablished liberal democracies, where constitutional symbols can be evaluated as “myths, fetish, taboo” believed in without a question by people – constitutional rhetoric and symbols inherent in constitutional provisions are new and therefore, subject to differentiated judicial interÂ�pretations and public debate in the great process of public learning. In this way, they can contribute significantly to the overcoming of 3 ╇ The Constitution of the Republic of Poland was proclaimed on 2 April 1997, replacing the “Small Constitution” of 17 October 1992 which was designed to reverse

8

introduction

the inherited “us-them” divisions, integration of postcommunist society, and, in accord with the Durkheimian understanding of symbols, reduction of the complexity of changes, and stimulation of the development of collective sentiments in a liberal-democratic society, the famous constitutional patriotism of democratic citizens. Finally, in sociological theory, constitution presents the mentioned “theory of society within society” – the logos of the newly born polity. From this perspective, the constitution – together with constitutional adjudication – provides society with concepts, arguments, and reasons that enable its self-observation, self-reflection, and self-definition. The task of the new democracies in ECE consists then primarily in finding the concepts and elaborating such a theory which would enable them to consolidate and form their new identities, and to struck constitutional consensus as well – in a world in which no one believes any longer in “objective laws” of historical development, nor in comprehensive grand theories which justify social and political arrangements proclaimed in the constitution. This task is of burning importance, perhaps as important as the above mentioned redirection of the whole legal order toward effective civic and human rights protection, because of the legacy of the not legally binding “paper constitutions,” the hypocrisy of “socialistic legality,” and, perhaps even more notably, the legacy of a “theoretical fiction” or “hyper-reality” of a “developed socialistic society” which existed merely in books, manifestos, and communist party proclamations but was reflected in communist constitutions as the already “proven” effect of historical development.4 the effects of communism and establish the nation as a democratic republic; the Constitution of the Republic of Slovakia was proclaimed on 1 September 1992, and of the Czech Republic on 16 December 1992. The Constitution of the Republic of Hungary was proclaimed on 23 October 1989. The center-right coalition brought to power in the 1998 Hungarian elections proposed replacing the old preamble with a charismatic one referring to the Holy Crown, the symbol of the Hungarian Monarchy. The draft Law on the Memory of the Foundation of the State by Saint Stephen and on the Holy Crown stipulated that”… the Holy crown lives in the consciousness of the nation and in Hungarian public-law tradition as a relic embodying the continuity and independence of the Hungarian state.” The crown itself was moved from the Hungarian National Museum to Hungarian Parliament, and resumed its status as the leading constitutional symbol. As it was – perhaps somewhat too emotionally – observed, the crown itself is at the center of an increasingly influential constitutional counter-theory; it has become a symbol concentrating the dark passions of Hungarian conservatism, particularly those that move toward fascism. The proposal was eventually defeated, but the object itself remained in the Parliament (Scheppele 2000: 51). 4 ╇ These remarks on supra-reality created by communist constitutions refer to the most insightful book on communism written by Jadwiga Staniszkis. In that book its



the objectives of this book

9

The conceptualization of constitution as a theory of society within society is instrumental in the analysis of the transformation of a communist, fictive constitution into a binding one, and in the analysis of its contribution to social and political consolidation, and active citizenship. The question is whether postcommunist constitutions fulfill these tasks? Do they effectively define and protect civic rights and do they reflect reasons that justify political, economic, and social arrangements? Are the constitutions of the postcommunist societies in East Central Europe capable of consolidating society around clear principles and symbols, or do they still function as part of a “fiction” of liberal democracy, of a created new “hyper-reality” with no binding consequences? Like the constitutions, also the concept of constitutionalism has several meanings. Lawyers and political scientists roughly understand it as “the rule of law,” or in continental European tradition, as “the lawgoverned state.” Such a thin and seemingly purely procedural, but nevertheless crucial conception of constitutionalism is developed by those€ authors, who define it as a set of effective political and legal arrangements aimed at subordinating political power to the rule of law, as a juridification of political power (Grimm 2004: 145). In a more elaborated way, constitutionalism is defined as a rule of law based moral€conversation in a deliberative democracy (Nino 1996: 5). From the perspective of such elaborated definitions, constitutionalism is a “…state of affairs, in which the rules and values entrenched in the constitutional text penetrate public discourse and public practice that is, when the fact that a particular rule is constitutionally recognized weighs heavily upon the arguments and motivations of political actors (including the citizens when they act in public roles: as voters, members of political parties, etc.)” (Sadurski 2005: 20). Summarizing these approaches from the sociological point of view, constitutionalism has two dimensions: one consists of the binding constitution, elaborated in the constitutional adjudication, where the mentioned theory of society about itself is expressed. The second dimension of constitutionalism presents constitutional consensus of the newly born democratic nation. Of burning importance is the compatibility

author observes that created reality functioned as if it had really existed, and acquired a quasi ontological status (Staniszkis 1989).

10

introduction

between these two dimensions: the compatibility of the statements and promises of the constitution with social processes and their representations in the consciousness of citizens. In the reality of the postcommunist East Central Europe, the compatibility between these two helps to overcome the legacy of the Stalinist, fictive constitutionalism, and move toward a binding constitutionalism of the self-conscious, postcommunist polity. Postcommunist dilemmas and sources of popular frustration As I am going to demonstrate in this book, the construction of postcommunist constitutionalism and the sociopolitical consolidation around the constitution is still very difficult because of a lack of clarity of meanings and signs about the new order and its further development. In turn, this stems from the legacy of Stalinist fictive constitutionalism, as well as from the fact that the changes in East Central Europe were of a peculiar nature – conducted under the motto of “selflimiting revolution” and the “rule of law.” Yet there are other factors at work creating difficulties in the formation of postcommunist constitutionalism and impeding the road to liberal democracy here. Thus, one can observe that the new constitutions in this region consist of some common, but also many different expectations, ideas, traditions, and experiences. There are the older, even very old traditions of constitutionalism vis-à-vis modern experiences with democracy or the lack thereof. There are, too, the experiences of a lack of national freedom, specifically under Stalinist totalitarianism, and the most recent ones with postcommunist reconstruction. Because of this, all these constitutions are “fear creatures” (Sajo 1999). They were proclaimed as a means of protection against totalitarianism and dictatorship. Inasmuch as they reflect various historical, political and legal traditions, they also reflect the more contemporary struggle against totalitarianism, including the legacies of World War II so important in this region. The Hungarian constitution, for instance, is still an “interim conÂ� stitutional arrangement” because it is the old, although importantly amended constitution of 1949. This constitution is crucially supplemented by constitutional adjudication, by the already mentioned “invisible constitution” developed by the Hungarian Constitutional Court. Therefore, decisions of the Constitutional Court comprise an



the objectives of this book

11

important constitutive part of current Hungarian constitutionalism. For the constitution of the Czech Republic, important was the Czechoslovak Constitution of 1920, as well as the later arrangements of 1968 after the dramatic invasion of the armies of the Warsaw Pact crushing Czechoslovak reforms, and on the relationships between the two nations: Czech and Slovak. The post-Stalinist, 1992 Constitution of the Czech Republic was proclaimed fairly early and reflects older Czechoslovak civic and democratic traditions. The 1992 Constitution of Slovakia, on the other hand, is focused, one can say, on legitimization of the newly born state – hence the invocation of Cyril and Methodius and the Great Moravian Empire. Finally, the Polish Constitution of 1997 is a late document. It was born in pain, after protracted debates and amendments of the old, 1952 Stalinist ConÂ� stitution,€ and after many changes of government. It reflects many conflicting ideas, as well as the trials and tribulations in the installation of a law-governed state and market economy.5 However, independent of the diverse traditions – some of which present an important cultural capital for the emerging constitutionalism – all constitutions are faced with common crucial dilemmas which put the reconstructing and consolidating potential – indeed, postcommunist (or post-Stalinist) constitutionalism in general and the conÂ� stitutional consensus in particular – to the test. They challenge the very semantics as well as constitutions’ crucial principles, and present a serious threat that the new constitutionalism will be merely illusionary in societies characterized by deep divisions and a universal distrust toward governments and their institutions.6 These are the typical hurdles which need to be overcome en route to the law-governed state when dealing with the legacies of gross human rights violations in the past.

5 ╇Updated texts of the constitutions are to be found at: http: //confinder. richmond .edu/country. php 6 ╇ Conceptualization of a constitution as a created illusion of coherence and unity can be found in works on discursive strategies in politics (Delanty 1999: 192, cf), but also in the older, Anglo-Saxon tradition concerning symbolic violence. In particular, I have in mind Thurman Arnold’s book titled The Symbols of Government (1935). Arnold maintained that cultural unity and societal coherence are peculiar “illusions” created by symbolic activities of political elites and legal institutions. According to him, legal and political systems create a reservoir of emotionally relevant social symbols (Cotterrell 1992: 102–104). Arnold belonged to those American Legal Realists, who praise the Constitution as a symbol of security, the unifying symbol.

12

introduction

As will be demonstrated in this book, the bequest handed down by the distant as well as recent past (e.g., that of World War II which was then legalized or made taboo by the communist regimes) still haunts postcommunist constitutionalism. Among others, there is the question of how to cope with the experiences of Gulags and all forms of complicity in a totalitarian system at the same time as one is creating a lawgoverned, democratic government and tries to fulfill social expectations of justice. Therefore, a hypothesis may be formulated that the past human rights violations continue to hinder contemporary constitutionalism, especially its most fundamental principle, the mentioned principle of the law-governed state, regardless of proclamations announcing the “end of postcommunism.” There are also crucial questions created by the economic transformation – above all by the privatization of the state-owned companies and properties. These questions refer to the two principles of the modern world: that of the rule of law/ law-governed-state, and the neoliberal orthodoxy of a deregulated, free market based on the well protected, individual property rights. Both of them went unquestioned at the beginning of the 1990s, precisely when the new constitutions were debated and ratified. In time, they turned out to be the crucial challenges to the postcommunist constitutionalism, as they became responsible for the most important dilemmas postcommunist societies are facing. They are the dilemmas of the rule of law protection and the simultaneous punishment of the former human rights violation, as well as the dilemmas of the rule of law and again, the simultaneous transformation of the state-owned into private property, what was linked with the transformation of economy. Responses to these questions are crucial in development of constitutional consensus and expunging the remnants of a fictitious “hyper-reality” of Stalinist constitutionalism. How the rule of law is interpreted and applied towards the past, as well as the constitutionalization of economic reform are decisive in whether€the constitutional consensus remains an “illusion” manufactured through the symbolic activities of political elites, whether postcommunist constitutionalism ends up differing little from the former, Stalinist one, or whether it structures social action and plays an important role in the task of integrating society, overcoming the divisions of “us” and “them.” Both the interpretation of the rule of law when applied to past human rights abuse and the constitutionalization of economic reforms weigh also heavily on the distinctive, moral aspects of postcommunist constitutionalism.



the objectives of this book

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Apart from the problems of an internal nature, there are also those initiated by accession into the European Union. For Eastern Europeans, the changes initiated in Poland in 1980, and in the late 1980s elsewhere, were symbolized by a slogan of “back to Europe.” However, even before the transformations began, the international as well as European context had become more important. Evidence of this, among other things, lay in communist government efforts aimed at international recognition, legitimacy, and, quite cynically, financial aid from Western institutions. The international context manifested itself in signed treaties and covenants, even if they were never intended to be applied and never formed a binding part of the internal legal order. Because of them, however, using force of a Tiananmen Square type would be impossible in the still-communist ECE in the late 1980s (Linz, Stepan 1996: 322, 323, 324). The treaties and covenants, especially those linked to the Helsinki peace process, also comprised a crucial factor in the civil society struggles for the rule of law and regime liberalization. The members of Charter 77, the Polish workers in Gdansk in 1980 and, earlier, the Members of the Committee for the Defense of Workers (KOR) in Poland appealed to the International Covenant on Civil and Political Rights, the European Covenant on Fundamental Rights and Liberties, the International Covenant on Economic, Social and Cultural Rights, to the Helsinki Final Act and – predominantly in the case of Poland – to the Covenants of the International Labor Office protecting the freedom of labor unions. These international agreements represented the legal foundations of civil society activities, of efforts to overcome the hypocritical, Stalinist constitutionalism. Years later, the drafters of the postcommunist constitutions soon realized that they had to take the European context into account for their projects – European ideas and principles of solidarity, market economy, and human rights protection – as part and parcel of their aspirations to be members of the European Union. After the change, the legal aspirations to realize the letter of the above-mentioned covenants turned into a set of further dilemmas and paradoxes concerning the newly won national sovereignty and the symbolic role of a constitution as a nation’s “birth certificate” that could unify a fragmented postcommunist society characterized by “many legalities” (Oerkeny, Scheppele 1999: 55–76). In contrast to the stress on national sovereignty, European institutions represent a “last resort” for societies, disenchanted with the type of democracy they have at home, with injustice and failing human rights protection by their own,

14

introduction

democratically chosen governments. As the case of the “Euroenthusiastic” Poles indicates, whenever constitutionally guaranteed rights are violated at home, the Poles appeal directly to “Europe,” taking a short cut and evading prescribed procedures for investigation and consideration by their own authorities.7 Thus, accession also contributes to the ambivalences and uncertainties faced by postcommunist constitutionalism. As it is argued, we observe the approaching end of classic liberal constitutionalism in an age of emerging post-national constellations (Bellamy, Bufacci, Castiglione 1995: xi; Grimm 2004: 145). Instead of the previously unquestioned hierarchies, the multi-leveled and multi-layered legal order, an emergent, spontaneous, grassroots constitutionalism is postulated (MacCormick 1996; Skąpska 1999). According to sociologists, since 1989 we have been living in an era of new constitutionalism,”… marked by the mixture of increasingly judicialized legislation by parliaments and administrative organs and legislative jurisprudence by the constitutional courts and supranational judiciary organs. (…) This makes for a distinct mode of constitutional rationalization in the global era” (Arjomand 2003: 9). These processes put in doubt the very concept of the sovereign nation-state so key for the new democracies having been deprived of full statehood for a half century at least. These new democracies are confronted by the phenomenon of political and legal sovereignty diversification, and its distribution among nation-states, supra-national organizations, as well as regional and local entities. On the other hand, however, because of the great stress on legality within the European Union, its efforts to shape and integrate the European legal space, and above all the great importance of fundamental rights protection by the European Tribunal of Human Rights, one may assume that “Europe” is of great significance for the strengthening of some sensitivities characteristic of Eastern Europe, above all a heightened sensitivity to human rights protection. In turn that – together with efforts at reckoning past human rights violations – could comprise an important factor in the process of postcommunist constitutionalism formation. ╇ Poles are among those who complain mostly to the European Court of Human Rights in Strasbourg because of perceived violation of their rights by Polish authorities. However, 97 percent of these complaints are invalid and sent back because they were sent to the Court directly, after a first decision was made and in omission of prescribed procedures for appellation (data on complaints can be found at www. echr. coe. inf/). 7



the objectives of this book

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Finally, if one considers the situation in which postcommunist societies found themselves and the nature of the regime they experienced for nearly fifty (or, in the case of the former Soviet Union, seventy years), postcommunist constitutionalism presents an even more unique phenomenon – one for which no blueprint exists. It takes place in an environment characterized by uneven time trajectories, in which some societies in Central and Eastern Europe are attempting to construct a modern nation, a modern concept of citizenship, and a sovereign nation-state from scratch, or to consolidate such after being brutally torn asunder in 1939. Others, in turn, try to form or accede to supranational organizations, of which the European Union presents the most visible example. Theoretical background of this book This study – with its reference to the social aspects of constitutionalism as embedded in culturally shared norms and expectations, and with its stress on the communicative and symbolic aspects of a constitution – is part of a long East Central European tradition of socio-legal studies, denoted by such names as Eugen Ehrlich or Leon Petrażycki. This tradition is supplemented by an argument that constitutional arrangements could be more or less consolidated and coherent that there could be smaller or greater compatibility between the written document, constitutional adjudication, and the fundamental social expectations and practices. In light of my deepest convictions, the entrenchment of constitutions in extra-legal, social norms and expectations – but especially in discursive practices – and its recurrent contribution to the activation of such norms, expectations and shared meanings is of primary importance for democratic consolidation. The emphasis is placed upon constitutional rhetoric and discursive aspects of the functioning constitutions. These are important for differentiating the liberal democracies from other political arrangements, for social self-reflection, and new identity formation after the collapse of dictatorial regimes. Additionally, this book is rooted in some broader sociological foundations. The approach sensitive to social contexts and social discourses finds its strong theoretical support in contemporary thinking about social and political change as multi-linear and complex, influenced by human agency and social history, social ideas and self-conceptualizations, by past legacies and institutional – indeed systemic – constraints

16

introduction

or those of a semantic nature. As Piotr Sztompka writes, theories of social change “evolve away from mechanistic developmental schemes claiming inevitability, necessity and irreversibility for social processes, (…) toward an emphasis on human agency, the contingency of events and openness of the future” (Sztompka 1993: xiv). The concept of social change as not uni-linear but complex and contingent is currently supported by the view that modernization is a process that is open, in the words of Shmuel Eisenstadt, to the ambiguities brought about by the development and encounters of cultures (Eisenstadt 2003). These new social change and modernization theories not only reflect the “end of clarity” (Bauman 1991), and a crisis of modern institutions of law, polity, and politics (Beck, Giddens and Lachs 1994). They also consist of some positive propositions. Thus, instead of certainties typical of the classic model of linear social change and modernization complying with certain universally valid guidelines, new forms of political organization and of law as vehicles of modernization are postulated. These forms are more flexible and less authoritarian, no longer unilaterally imposed from above by enlightened leaders and more dependent on communicative actions, symbolic representations, and even emotions as important tools by which to overcome or absorb the contingencies and uncertainties initiated by transformation and international cooperation. Again, within this broader framework, recent sociological theories on the development of constitutionalism act as an important, more specific background for this study, with their accent on constitutional history and the formation of a new stage in it: the overcoming of authoritarian and totalitarian, ideological constitutions and the formation of post-national constitutionalism that presents a mixture of “judicialized” legislation and a “rights revolution” (Stone Sweet 2000; Arjomand 1992: 39–82). In particular, important is the already classic statement that “Only a minority of institutions is consciously designed while the vast majority has just ‘grown’ as the undesigned results of human action” (Popper 1966: 23). According to James Buchanan, institutions are only accepted if they have not been imposed “from above”; the members of society must have agreed upon them voluntarily (Buchanan 1977). Such arguments contradict the popular – especially among attorneys – narrowly instrumental and utilitarian view on constitution and law. In light of such view, the law and the constitution present crucial, consciously designed instruments for social change created in accordance with



the objectives of this book

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specific and conscious plans. Thus, a constitution not only legalizes and legitimates change but also implies it. Additionally, because of the constitutional adjudication and law enforcement, social institutions and cultural changes compatible with the predesigned constitutional arrangements are formed (Teitel 2000: 6). The constitution imposes fundamental constraints on society; notably it acts against such cultural features which present a threat to liberal constitutionalism (Sunstein 1996: 226). Therefore, what one needs is a strong and efficient state apparatus guaranteeing the success of liberal constitutionalism (Holmes 1995: 28 ff; Holmes 1996). Nonetheless, as we know all too well, ambitious plans to change social reality in keeping with some deliberate project are seldom successful. More often they lead to consequences unforeseen even by the most skilled craftsperson. Moreover, a constitution itself could function as a self-referential document far from social reality, what in Eastern Europe became known as a “paper constitution.” A third path for negotiating between the Scylla of pure spontaneity in the formation of social institutions, and the Charybdis of constructivism typical of legal approaches is sociological structuration theory. In light of it, a social structure functions as the contingent product of pre-existing institutional resources and the unintended results and outcomes of human actions. Important are actions undertaken in everyday situations by actors who – applying their practical knowledge and reflecting on the conditions of action – try to achieve their goals within the framework of existing institutions and structures, using them to their own advantage, as part of a broader process of production and reproduction of a society. Structuration theory accentuates the dynamic, processual, and time-related aspects of social change, as well as the fact that such a dynamic order presents a combination of factors: consciously designed, unintentional, and spontaneous. What emerges is deemed by previous arrangements and previously existing cultures – the mentioned accumulate social wisdom or social capital -, and the combination of the concrete goals, interests, and ambitions of the actors involved. All these factors recursively influence the institutions initially designed as transformative (Giddens 1984: 281). Other authors stress the historically established patterns of behavior which are difficult to change from without because informal rules and enforcement mechanisms developed over a long time will tend to absorb and defeat the purposes of the best drawn blueprints. Such analyses were expanded in Douglas North’s theory of path dependency in

18

introduction

the development of institutions and structures, and they informed Robert Putnam’s argument regarding the influence of a distant history of civil society on the contemporary economic success in northern Italy (North 1990; Putnam 1993). Especially North’s approach to institutions and institutional change is of importance here because of this author’s accent on the entanglements of formal and informal institutions, especially under conditions of uncertainty, and the intentional behavior of economic players. According to North, the latter will attempt to change formal institutions in their own favor, if investment in changing institutions seems more lucrative to them than an investment in alternative projects within existing ones (North 1990: 79). Empirical context Initially intended as an investigation into one country – Poland – this study of constitutionalism after communism grew and ultimately included comparisons to other East Central European postcommunist countries – primarily Hungary, the Czech Republic, and Slovakia. All of these shared the political and legal history of the Habsburg monarchy before 1918 with the exception of Poland which, for roughly one hundred forty years, was divided among three separate political and legal regimes: while its southern territories belonged to the Habsburg monarchy, the western and northern parts were incorporated into the German Reich, and the eastern part into the Russian empire. Hence, out of all four countries, Poland presented the best historical laboratory for research into different legal and political regimes, and the interplay of contrasting legal and political cultures. The Czech Republic and Slovakia also have a differentiated legal past because, preceding World War I – after the so-called Austro-Hungarian Compromise of 1867 – Slovakia found itself within the Hungarian sphere of influence and belonged to the unitary state of the Hungarian Crown, whereas the territories of today’s Czech Republic (Bohemia, Moravia and Silesia) fell within the Austrian sphere, enjoying relatively strong self-government, regional constitutions, and judicial review of administration (Hendrych 1999: 17–19). All of these nation-states experienced nearly fifty years of Sovietstyle communism following a totalitarian German occupation, most cruel in Poland. All of them had a common goal in joining the European Union – a crucial factor in the proclamation of their new constitutions,



the objectives of this book

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transformation of their respective systems of justice, and their efforts aimed at changing the respective political and legal cultures. The most recent evidence as to the importance of the issues debated in this volume have been provided by events in Georgia and then in the Ukraine. As a reaction to hypocritical Stalinist constitutionalism, new semantic guidelines have been obviously provided by the concept of the rule of law, or rather – considering continental European traditions – of the law-governed state with accompanying principles. The primary outcome of a constitutional rule of law consists of the transformation of a purely programmatic constitution into a juridical one, i.e., one that is to be implemented and protected by courts. The importance of a juridical constitution is even greater than initially assumed, if one considers the normative emptiness or even moral devastation of postcommunist societies, at least when public morality is considered. The great concerns of former dissidents with the rule of law and its constitutional establishment indicate that we are dealing here not only with the pursuit of an important trait of civil society – in accord with Kantian conceptualizations of it – and not with partisan beliefs and fantasies. The stress on the rule of law indicates that we are perhaps dealing with uncontested convictions stemming from experiences with its absence and with a hypocritical legality. It further points to concerns with legal certainty and security as axiological components of a rather formal rule of law principle. The second type of semantics that could render new constitutions providing a society with new means of self-definition was connected to the devastated economies, on the one hand, and concerns with individual economic freedoms and liberties, on the other. This entailed the semantics of a liberal economy and free market – translated in the postcommunist societies into the “economy first” and “one should take one’s own affairs into one’s own hands” slogan. A liberal constitutionalism that protects economic freedoms and liberties was seen as the foundation of a free society. Both types of constitutional semantics are key: the one emerging from the primary principle of the rule of law as the foundation of constitutionalism, and the one stressing individual rights and liberties. If not taken for granted, each of these slogans refers to unspoken, highly complex, and often ambiguous assumptions and propositions as to the rule of law and legality, the free economy, and “Europe” as semantic foundations for new constitutional arrangements and as means of

20

introduction

self-representation and self-definition. With regard to these three concepts, other issues arise. First, there are questions concerning the relationship between the emergent postcommunist constitutions and those initial forms of civil society which were part and parcel of Solidarność in Poland, of Charter 77 in Czechoslovakia, and of the Democratic Forum in Hungary. How much did they contribute to the differentiation characterizing a mature civil society in contrast with one in statu nascendi? How much did they promote the transformation of the once undifferentiated movements, or “splinter groups” of a handful of dissidents aimed at the dismantling of the regime into active political societies, into active political nations composed of conscious citizens? To what extent did they underpin important ethical values which import meaning and direction to the transformation as features of civil societies? Secondly, how much did they promote the formation of an economic society, composed of active economic agents? Finally, there are questions about the legitimizing and consolidating potential of theories represented by such slogans. With regard to the above-mentioned questions, postcommunist constitutionalism is still faced by great challenges. Firstly and most importantly, it is faced by an intellectual or cognitive challenge to address the novel tasks, the aspirations of the newly-awakened civil societies. The two subsequent challenges – internal and external – are closely, indeed intimately, related to the first one. They consist of the liabilities left by the former system – the hypocritical constitutionalism, the socialist social contract, and the nationalist rhetoric of late communism. Postcommunist constitutionalism is also challenged by a temptation to implement institutions, principles and rules borrowed from the developed liberal democracies and liberal constitutional semantics in their most unquestioned sense, instead of implementing reflective, context-sensitive and careful change of postcommunist reality with due consideration of the existing resources, assets, and liabilities. The external challenge takes the form of an international but, most of all, European integration. This contributes significantly to the ambivalences and uncertainties faced by the postcommunist constitutionalism. As is argued, we note the approaching end of classic liberal constitutionalism, the weakening of “people’s sovereignty” and majoritarian democracy principles, as well as the weakening sovereignty of the state (Bellamy, Bufacchi, Castiglione 1995: xi). Instead of the previously unquestioned hierarchies, a multi-leveled and multi-layered legal



the objectives of this book

21

order, and an emergent, spontaneous, grassroots constitutionalism are postulated (MacCormick 1996; Skąpska 1999; Teubner 2004). These processes put in doubt the very concept of the sovereign nation-state, so vital for the new democracies deprived as they were of full statehood for half a century or more. With regard to the crucial concept of national sovereignty, the new democracies are confronted with political and legal sovereignty diversification and its distribution among nationstates, supranational organizations, as well as regional and local entities. On the other hand, however, because of the great emphasis on legality within the European Union, its efforts to shape and integrate the European legal space, the great importance of fundamental rights protection by the European Tribunal of Human Rights, and the recent efforts to proclaim the European constitution, one can hypothetically argue that we are witnessing the emergence of a new, postnational constitutionalism.8

8 ╇ This is reflected in the contents of constitutions, in all those provisions deciding on the supremacy of international treaties over domestic laws and the necessity of harmonizing domestic law with ratified international treaties – in particular, with European law. Accession to the European Union resulted in important amendments of some constitutions, notably those proclaimed relatively early. All constitutions must recognize the supremacy of international treaties and covenants on human rights protection. Moreover, the Constitution of the Czech Republic stipulates (in Art. 10) that “Promulgated international agreements, the ratification of which has been approved by the Parliament and which are binding on the Czech Republic, should constitute a part of the legal order; should an international agreement make provision contrary to a law, the international agreement should be applied.” According to Art. 10a of this constitution, “An international agreement may provide a transfer of certain powers of bodies of the Czech Republic to an international organization or institution.” In Art. 10b. 1, the Czech Constitution stipulates that “The Government should inform the Parliament regularly and in advance on issues related to obligations arising for the Czech Republic from its membership on an international organization or institution stipulated in Section 10a.” The Hungarian Constitution declares that “By virtue of treaty, the Republic of Hungary, in its capacity as a Member State of the European Union, may exercise certain constitutional powers jointly with other Member States to the extent necessary in connection with the rights and obligations conferred by the treaties on the foundation of the European Union and the European Communities (hereinafter referred to as “European Union” ), these powers may be exercised independently and by way of institutions of the European Union (Art. 2/A.1). According to Art. 6.4, the Republic of Hungary should take active part in establishing European Unity in order to achieve freedom, well-being and security for the peoples of Europe. In turn, Art. 7 stipulates that “The legal system of Hungary accepts the generally recognized principles of international law, and should harmonize the country’s domestic law with the obligations assumed under international law, and should harmonize the country’s domestic law with the obligations assumed under international law.” The Polish Constitution (in Art. 9) states that “The Republic of Poland should respect international law binding

22

introduction

upon it,” and, in particular, its Art. 87 further stipulates that ratified international agreements and regulations present the source of law. Furthermore, Art. 91 declares that “An international agreement ratified upon prior consent granted by statute should have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes” (91.2), and that “If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it should be applied directly and have precedence in the event of a conflict of laws” (91.3). Similarly to the Constitution of Hungary, the Polish one also declares that “The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters (Art. 90. 1). See http: //confinder. richmond .edu/country. php.

Prologue

Between “Civil Society” and “Europe”: Round tables in East Central Europe as Political and Legal Events In the words of a prominent German constitutional lawyer: “In recent times, few ‘images’ have made as much (world) history, aroused so many hopes and achieved so much for freedom and democracy as the round table RT). Invented by and in Walesa’s Poland, it may, from the point of view of history and mankind, go back to King Arthur’s “Knights of the round table” (Haberle 1992: 66). As this author further argued, “The success of the round table is no coincidence. It can be justified from the point of view of constitutional theory, is culturally compatible and can be legitimized by the ethics of discourse and consensus. (…) It is the best visual and symbolic interpretation of the non-discriminating ‘live and let live’ characteristic of negotiation of pluralist constitutions that follows the collapse of a totalitarian system. The circle and the (round) table – these metaphors might be seen as a kind of ‘cultural gene’ of humanity” (Haberle 1992: 67).

Indeed, round tables have made a worldwide career, and the notion has come to be used as a political-cultural idiom.1 Although rooted in the principle of “non-violence,” as a way to dismantle first the colonial regime in India, and later the dictatorial regimes in Latin America, in Spain and Portugal – in the latter case known as reforma pactadaruptura pactada – round tables in East Central Europe presented an innovative path to an overwhelming and radical system change. It should be also stressed that although the events that led to the collapse of commuÂ�nism in Eastern Europe were not identical, as well as different were the particular models of the change, nevertheless there are

1 ╇ A comprehensive description of round tables in East Central Europe as well as accounts of them as historical events are to be found in the book edited by Jon Elster (1996a), The Round table Talks and the Breakdown of Communism. It is from this book that the phrase “negotiated abolition of communism” was borrowed.

24

prologue

some common and simultaneously novel features characteristic of the Eastern European RTs.2 The round tables broke off from a European tradition of revolution€– the not only rapid, but also violent and cruel change as a result of which preexisting political, legal, economic, religious, cultural and other social relations, institutions, and/or beliefs were smashed and replaced by new ones. They broke off as well as with the eastern tradition of “palace revolts”: the change of power-holders because of struggles behind tightly-closed doors, not known nor even understood or cared about by the “masses.” The round tables did not result from any unexpected turn of history, nor did they present some unintended consequences of a system’s collapse. The ECE round tables were simply the culminating events of a long series of civil society efforts aimed at liberalizing communist regimes; they represented tactical considerations regarding costs and benefits and risk avoidance. Their blueprint was drawn out in Poland, in the form of the Gdańsk Agreements concluded in 1980 when, for the first time in the history of communist regimes, the highest ranking members of the party and the workers, supported by the intellectuals, sat down at the same table and worked out a settlement that, in fact, would be the outline of a possible future constitution. The later 1989 round table would always be compared to the 1980 2 ╇ There are several models of the system change, even if all of them – as it has been stressed-, possess some general common features. So, there was a pluralist model a la polonaise, where negotations took part between the reformed communist and the opposition, but when also opposition was composed of various groups, following the Gdańsk Agreement of 1980. There is a Hungarian model, where negotiations took part between reformed communists and opposition, mostly intellectuals, therefore they had an elitist character, and the peaceful revolution took form of a “revolution from above”; and of course there is a model of perestroyka, introduced in the then Soviet Union by Mikhail Gorbatchev. In the then Czechoslovakia, the peaceful revolution was sudden, it was characterized by the spontaneous and emotional popular participation of the great numbers of citizens who suddenly and very emotionally supported the relatively small, but very prominent intellectuals dissidents, members of the famous Charter 77, and finally there was an East German model. In the latter case, the East German society eventually opted for the German unification and subordination of the GDR to the constitutional order of the German Federal Republic Basic Law, and the former democratic dissidents disappeared from the public stage, one can say. In his monograph “Hungary’s Negotiated Revolution” Rudolf L. Tokes takes yet another approach to the Hungarian peaceful revolution, emphasizing the longterm bargaining and compromises which characterize Hungarian political culture and have enjoyed a long history. In this view, the RT talks of 1989 would only comprise a final stage in a long process of bargaining on many levels of Hungarian politics (Tokes 1996; see review in Bozoki 1997: 100–102).



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agreement concluded in Gdańsk – more significant for the Poles although it was brutally annulled by the imposition of Martial Law in December 1981. The RTs would be long forgotten by now, if not for their impact on further political and constitutional development, and not for the model they offered for more contemporary events: the peaceful overthrow of corrupt, postcommunist regimes installed by falsified elections in Georgia in 2003, and in the Ukraine in 2004. Round table agreements constituted important moral justification for system change; they influenced the procedures for new constitution-drafting and paved the way for emerging postcommunist constitutionalism; and, last but not least, they imported new political rhetoric and new meanings to public discourses by influencing social perceptions and conceptualizations of political change. Some twenty years ago, the RTs were accompanied by great enthusiasm visible on the streets of East Central European cities – Prague, Berlin, Dresden, Leipzig and Bucharest. In Vilnius for a dramatic few days in 1990 the democracy was challenged by a Soviet invasion, but the wave continued through to Tallinn and Riga, and, more recently, in Tbilisi and Kiev. The list may grow longer in the years to come. However, it should be added that, in several cases (notably also in Poland) official round tables were accompanied by unofficial talks. Those talks, hidden from public view, were pivotal in the results of official negotiations and the future constitutions. In the initial citation opening this section, two further issues were raised which are seldom debated in analyses of the changes in ECE. Whereas mostly the political consequences of negotiations between communists and democratic opposition have been accented, and the “negotiated abolition of communism” (Elster 1996a: 1) has aroused interest – not to mention great praise and perhaps even relief inside and outside the region – the quotation from that very early publication points to normative sources of constitutional law, on the one hand, and to transformative potential of those negotiations, important for a future constitutional consensus, on the other. Looked at from that angle, the East Central European round tables represent, in most cases, a sort of preconstitutional contract, concluded before the formal proclamation of a new constitution. However, as will be demonstrated, the results of the tables were questioned by the society. Such was the case in Poland, where the political deal concluded at the round table in that country

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was challenged by the unexpected behavior of the electorate during the first semi-democratic election that took place in June 1989.3 The citation indicates basic principles of those contracts: the nonviolence principle of the “self-limiting revolutions,” the pacta servanda sunt principle, and the legality principle. The latter, rather astonishing aspect of the 1989 revolutions meant that the existing law would not be violated unless it was changed according to due process, i.e., procedures prescribed into constitutions valid at that time. Negotiations conducted by round tables were also connected with an emerging semantics, rooted in the previously mentioned non-violence principle. The core components of this new semantics presented such concepts as the “self-limiting revolution,” accompanied by “peaceful revolution,” “velvet revolution,” and, most importantly, “lawful revolutions.” Finally, the round tables were praised as the final victory of civil society in the political and moral sense of this concept. It was a victory of the democratic opposition, of the well known dissidents, but also of the unknown numbers of people whose support – on the streets in spontaneous demonstrations, strikes, and other types of civil actions, and in petitions, appeals to international institutions, and unofficial resistance activities – contributed greatly to the success of negotiations conducted by the most prominent members of the anti-communist opposition. The events immediately preceding round tables (in Poland also preceding the 1980 Gdańsk Agreements), the manifestations on the streets, the great popular engagement in the public debate, the formation of a public stage – often in the direct sense of the term since, especially in Prague, many events did take place in theaters – all indicate that we were dealing with truly “constitutional moments” unique in a nation’s history – times of great emotional upheaval and intellectual mobilization in which constitutions are born. The semantics of peaceful revolutions and the emotions which accompanied them contributed to the appearance of specific characteristics of the transformations in East Central Europe. From the perspective of institutional theory – especially the “path dependence” theory – round tables were important events that decided not only on the change, but also on the continuation, and they determined the development of the future constitutional orders (North 1993). 3 ╇ It was not only in Poland, but also in Hungary, and several other countries that subsequent elections brought to former communists power, now calling themselves social democrats.



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Round tables as political events The political importance of the round tables is hard to underestimate: following the example set by the first two held in Hungary and Poland, they led to the peaceful demise of totalitarian systems and to the democratization of the entire region. They were characterized by a high degree of strategic self-limitation typical of both participants, but first and foremost of the democratic opposition: they were peaceful, their participants respected the procedures and the existing law, and they were showing respect for one another, at least in public (the exception being the orchestrated political trial and execution of the Ceausescus in Romania). Moreover, the broadly understood public also showed no desire for revenge: there were no terrorist acts, no looting or demolishing of public buildings. Instead there were roses on the streets of Prague. The peacefulness, self-restraint, and respect for the concluded pacts were rather astonishing. However, there was a model of such peaceful transformations, namely the model of non-violent overthrowing of colonial regimes, based on Gandhi’s principle. In Poland, this was translated into the slogan “combat the evil with good” and propagated by the Catholic Church, especially by the Catholic priest who himself became, in 1983, a victim of the totalitarian system – Father Jerzy Popiełuszko tortured and murdered by the secret police agents. The outside world greeted the tables with great relief. They did not question, nor threaten the then-existing international relations. They were also greeted with relief by societies in which they were set, fed up with life in police states, with the omnipresence of police spies, with state control over private lives, and with an ever present pressure to play a part in orchestrated political events: manifestations, demonstrations, marches, or fake elections. As has already been stressed, they resulted from the efforts of the prominent dissidents – of Havels and Michniks – but also of ordinary people, supporters of the system change. Their main feature, next to peacefulness, was a form of political realism, and maybe a certain willingness to hearing their opponents out and closing a contract peacefully. Hence, looked at from this perspective, the round tables allegedly fulfilled the crucial condition of the Jürgen Habermas discourse ethics ideal: their participants were disposed to conclude an agreement, and that disposition presented the primary condition for the negotiations (Habermas 1982, vol. I: 22). Their outcomes, on the other hand, decided on the features of the emerging political system and constitutional order in general, and the

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emerging power relations in particular – on the political winners and losers. Although the actual histories of particular round tables – their origins, developments and sociopolitical and legal dynamics, and, also, to some extent their outcomes – differed considerably, they did however share a few crucial features. Thus, even if in Hungary the change was dominated by political decisions of the communist party and the political opposition members in a seeming lock-in of mutual involvement in the whole process of political transformation, in Poland the Solidarność movement and the Catholic Church represented strong social forces able to counterbalance the communists to some extent; in Czechoslovakia, Romania, Bulgaria, and the German Democratic Republic, the ruling party elites were unwilling to make any political concessions until caught off-balance and forced to accept them. In the, at that time, Baltic Republics of the Soviet Union round tables took place in 1990–1991 resulting in the demise of the Soviet Union. Indeed, all led to unprecedented political transformation in a peaceful manner€ in which – with the important exception of the then German Democratic Republic – the former dissidents took on themselves the political responsibility of the system change and the future reforms. And they did so under circumstances of the highest uncertainty, internally and externally. This observation pertains particularly to the pioneer Hungarian and Polish round tables. In case of pioneers the risk was great, especially in light of previous Soviet invasions in Hungary in 1956 and in Czechoslovakia in 1968, the threat of Soviet invasion in Poland in 1956,€and in 1981, as well as the actual imposition of Martial Law that year. Moreover, one has to stress once more that not only did no blueprints exist as to how to go “from communism back to capitalism” or “from “Euroasia” to “Europe,” but, in 1989, those countries still belonged to the Council for Mutual Economic Cooperation which meant they were producing and selling their products overwhelmingly to the former Soviet Union, and the Soviet Army was based in nearly all of them as members of the still-existing Warsaw Pact. For the pioneers the outcomes of talks were not predictable at all, so one can imagine that engagement in the round tables and the concluded compromises were considered risk-reduction. Latecomers were in a relatively better position and their communist counterparts in a relatively worse one. As the tables in Poland and Hungary had already made clear, they need no longer fear impending



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Soviet invasion, i.e., the “brotherly intervention” of the Warsaw Pact. Hence the tables in Hungary and Poland were turning points of great consequence, whereas those in other countries followed the first examples and learned from their outcomes as, for instance, in the then Czechoslovakia where negotiations at the table were brief and the table itself reduced (Calda in Elster 1996a: 53). Only the round table set in the then German Democratic Republic was inconclusive and dissolved itself because, as it is argued, its participants acting for the democratic opposition did not perceive it as a political event and did not want to take political responsibility, nor exercise political power (Preuss in Elster 1996a: 112–115, 120–128). Haberle metaphorically compares the participants of the round tables to the legendary “knights” who by definition would behave in civil fashion. However, one has to ask a crucial question about the political reality, about the correlation between the appearances, or the public stage, and the social and political forces behind round tables, behind the curtains. What of the social and political characteristics of their primary participants, and their social capital – their skills, hidden information, networks and connections, not to mention real capital in the form of actual resources (including financial and military, for instance) which they had at their disposal? One also has to remember the eloquent metaphor used in political sciences and political sociology that of the noble and civil “Lions” who stick to initial principles, and the cunning “Foxes” who are primarily concerned with the outcomes of the political game in which they participate and compete for power and protection of their vested interests in the upcoming political reality. In light of the oft-times quoted four-player game theory model, there are four groups of political actors in play in any transition from dictatorship to democracy: hard-liners and reformers on the side of the regime, moderates and radicals on the side of the opposition (Przeworski 1992). However, limited to such a model and possible configurations among the four main groups, the analysis leaves open genuine political issues, i.e., those concerning real political power, political interests, political legitimization, and political outcomes. Thus, in what follows, I would like to look closer at these issues with regard to the East Central European round tables as significant in future political and constitutional processes. The question concerning power, actual and future, seems still, after some twenty years, very intriguing. There is, of course, the issue of a

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clear lack of balance between the communists and the members of the opposition. It seems that there was a “big player,” the communist nomenklatura, and a small underground opposition that struggled to exist but lacked strength and autonomy comparable to that of the big player. Thus, some questions arise. For one, why were the functionaries of the regime willing to limit their power but also, what power did the opposition members possess? Why did the round tables come to exist at all? The often formulated answer to such questions address not the power, and not at all the conscious self-restraint of both participants, but a purported weakness: it was the weakness of the communist parties, it is argued that led to the collapse of communism and forced its functionaries, at least some of them, to participate in round tables. Allegedly then, communist regimes were largely demoralized and already lacking any power (Elster 1996a: 10). On the other hand, the opposition was weak, too, as it is argued. Apart from Poland, it existed, if at all, in the form of some loosely organized groups of intellectuals such as Charter 77 in Czechoslovakia, some gatherings in churches as in the case of Eastern Germany, some loosely organized groups of ecologists, some writers, some philosophers, some clergy, and some scientists. Therefore the changes resulted from the overwhelming and all-penetrating weakness of all engaged parties. It was not introduced “top down,” nor “bottom up” but rather from outside, by the decisions of then Soviet Communist Party Secretary General, Mikhail Gorbachev, as well as by USSR weakness. Usually, weakness produces weak results, unless it has some strong arguments, some handy aces on hand. Thus, it is difficult to accept the weakness proposition if one only looks at the results of the tables post factum – from the formation of democratic governments to dissolution of the Warsaw Pact and withdrawal of the Soviet Army from ECE and then also from the Baltic States, to the unification of Germany; from the political liberalization to the overwhelming, very costly and painful economic reforms; from membership in the Warsaw Pact to membership in NATO, and the European Union accession of the whole region of East Central Europe. So the question still remains, why did members of the communist nomenklatura, the young and educated cadre – the “Foxes” – decide to dismantle the very power structures of which they were members, the power structures of the only regimes internationally recognized as legal? And why did the “Lions,” the opposition members engaged in talks with the communists, decide to place in jeopardy some of the



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high moral standards they were pursuing, such as engaging in secret negotiations hidden from the public, or making pacts with the very security police of which they had been victims? Leaving the weakness proposition aside, analyses of the round tables point to a growing awareness by some members of the communist parties not only of the deficiencies of communism and the decreasing probability of Soviet intervention, but also of the opportunities which a system change could offer. Typically, the moderate leadership of the communist parties, the mentioned reformers, were deeply interested in€talks and agreements especially as the political and, above all, economic liberalization had already commenced, predominantly in Hungary, and then in Poland. In Czechoslovakia, Bulgaria, Rumania, or the German Democratic Republic such reforms did not begin until the democratic breakthrough took place. Significantly, the interest of reformist communists in those talks was, to a considerable degree, greater in Hungary where the round table talks led to crucial amendments to the 1949 Constitution before the first democratic elections took place; later this moved to Poland where talks resulted in a deal between the communists and opposition concluded at the beginning of 1989. According to it, the first election in Poland was only partially democratic – the agreement guaranteed the communist candidates 65 percent of the seats in the Lower Chamber of the Polish Parliament (Sejm). The country presidency would be handed to General Jaruzelski; the very person who had declared Martial Law and crushed Solidarność was elected by the joint chambers of parliament by one vote (perhaps only because he voted for himself). One can assume that the reformist or moderate members of the communist parties were not only concerned in finding a new basis for legitimation and gaining financial and moral support from the West in order to protect themselves against the more rigid old guard, but, in both countries, they became vividly interested in the new opportunities which the economic and political liberalization of the regime was offering and had initiated, in Hungary and Poland, through the pre-1989 privatization of the national economy. However, one has to stress that the political deal – the round table compromise between the communists and Solidarność – has been questioned on more than one occasion and become a recurring and key constitutional issue in Poland. Contrary to expectations on the part of communist reformers, on 4 June 1989, the Poles voted almost exclusively for candidates of the opposition, and with the exception of one senator, only candidates of the opposition were chosen to the Polish

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Senate. Because many of the communist candidates failed to earn a minimum number of votes, elections had to be repeated on 18 June 1989 in order to fill the negotiated 65 percent of the Sejm seats (Bingen 1998: 47–49). Instead of a weak and demoralized communist party we obtain a quite different picture of the intelligent and opportunistic members of the party nomenklatura who first understood the great economic opportunities the change would bring and used their power, as in the Polish and the Hungarian case, to further control the process. Certainly, involvement in the negotiations was linked to considerable risk, internally and externally. However, with regards to the communist party apparatchiks, this was reduced by their knowledge of the growing apprehension towards intervention on the part of the new Soviet leadership. Thus also the time factor played a pivotal role here. The answer to the question on power and interests is not so clear with reference to the opposition. Its power came from initial unanimity in pursuit of a common goal (the demise of the oppressive system), the solidarity of its members, and also from international support. However, the events following the first elections revealed highly differentiated motives of opposition members to participate in the round tables. The initially loosely structured but relatively cooperative civic groups or civic movements in East Central Europe – Solidarność in Poland (no exception although it was great in numbers and comparatively well€organized) Charter 77 in Czechoslovakia, the Democratic Forum in Hungary, the New Forum in Eastern Germany, the ecological movements in Hungary and elsewhere, rapidly split off into many parties (initially into tens if not hundreds) and formed constantly changing coalitions along various interests: cultural, ideological, economic, and, very importantly, national. The initial potential power of the opposition also stemmed from popular social support. However, along with the splitting interests of the civil society, as well as the popular disenchantment with the talks and their results, the opposition lost its potential power. There is also a question on the actual and direct power of the participants at the very moment of negotiations. The communist participants of round tables had some important assets which were clear enough from the very start of the talks. First and foremost, they represented governments which were legal and internationally recognized. Aside from that, they could, and actually did use the argument of external threat as was observed with regard to Poland during the round table negotiations in 1989.



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“Whenever the demand for too radical change was to be countered, the Soviet interest in stability and gradual change was evoked” (Osiatyński in Elster 1996a: 25) until such threat became irrelevant. The important asset of the communist participants in the negotiations was the organization of the communist party itself: the only wellorganized structure existing in societies ruled by communists – with the exception of Poland in which such power was possessed by the Catholic Church and the forbidden Solidarność. Moreover, the communist participants themselves formed a well-oiled and coherent informal structure based on personal networks, close connections, and the above-mentioned and ever more important vested interests in economic transformation. Skillful utilization of these assets enabled the communists to proclaim a new constitution in Hungary before the first democratic elections in 1989, and in Poland to set the procedures for the first elections predetermining their results and nominating General Jaruzelski as the sole candidate for the future presidential office. One has to add that in Poland all this had been settled during the unofficial talks (Dubiński 1990). On the side of the opposition an important asset was experience in the underground struggle with the regime, the mutual trust, as well as the assumed high ethical standards of the opposition members used against the strategic games played by the “Foxes.” In fact, an asset was its informal structure as well as the close cooperation of top Solidarność members in Poland with Charter 77 members in Czechoslovakia and members of other forbidden organizations in the communist bloc. Yet another asset was a growing disgust with the regime felt by its subjects€ – a disgust with lies and hypocrisy, with doubletalk and “new speech,” with a double life in a double society, and strong popular demands for national independence and sovereignty. It was not necessarily a disgust with economic hardships – in fact in Czechoslovakia daily life was not so bad, and societies across the board could count on some level of social protection, free medical care, free education, paid€vacations and long maternity leaves, and an abundance of workplaces even if there was a scarcity of work – but with the ritualized accommodation to the regime, with the ever-present ideology, with the€manifestations of duplicity, and with the Soviet economic and cultural domination. Thus, the society – even if not directly represented, and only to a limited extent present in negotiations – comprised an important asset in the whole process of round table negotiations and€ cannot be overlooked in analysis of the democratic opposition’s actual power.

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With regard to their legitimization, round tables posed unprecedented events since theirs was mostly of a moral nature. No democratic or any kind of recognized procedures have ever tested this. As Jon Elster reminds us in his book on round tables, the first European attempt aimed at liberalization of the ancient regime, i.e., the events in France in 1789, was preceded by the verification of the credentials of delegates to the Estates General (Elster 1996: 4). Nothing like that took place in Central Europe in 1989 – the dissident participants in the round tables were not any kind of formal delegates. Basically they were somehow appointed by some highly prestigious members of the opposition on fairly unclear grounds and procedures, or they simply were there; they seemed to appear from nowhere. Their credentials existed mainly in the form of the moral standards they cultivated, popularly known as an “ethos,” and by their previous engagement in underground activities aimed at subverting the regime. They became known as “moral elites” (Preuss in Elster 1996a: 99) because their legitimization was rooted in their moral standards, and in a generalized trust of some sort. Their legitimacy found its accounts in the personal histories of their participants, and its validity was tested on the streets, in great civic demonstrations and manifestations of support. It is also very difficult to establish whose delegates were the communist participants of the tables. Certainly, they were high-ranking officials of the communist party apparatus. In Poland they included the then minister of internal affairs, and the same army general responsible for the introduction of Martial Law. Most importantly, however, their legitimization lay in the fact that they represented the internationally recognized governments, as mentioned before; they were not only legitimate but also legal and, as such, had never been questioned by the international community for about five decades, i.e., since the Yalta Treaty. Thus, as political events, round tables were based on a “live and let to live” attitude, very much related to the concept of a “self-limiting revolution.” This was not only due to the possibility of external intervention, but, above all, because of certain, well-defined and vested interests of their participants, on the one hand, and the high ethical standards the prominent members of the East Central European civil society allegedly cultivated, on the other. There also appeared the question of the long term costs of transformation, and any ensuing moral evaluation of the round tables’ opposition members. The latter became evermore important because the top



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apparatchiks of the communist party and managers of the state-owned companies had already started to benefit enormously from the economic transformation and took part in the privatization of the national economy. Thus, one may quickly conclude that the round table negotiations were based on two separate and distinctly different rationalities: the communicative rationality of negotiations and exchange of arguments between parties interested in agreement, and the instrumental rationality of actors strongly, but also quite cynically using the negotiations to protect their vested interests. Thus, contrasting with the theoretical model of “negotiated transformations” based on communicative rationality is a model based on the calculation of gains and losses by the participants in negotiations. Here the future costs of the concluded agreements are debated. One of the most insightful analyses of the strategic negotiations is€ offered by representatives of neo-institutional theory. The neoinstitutional model – here called the strategic model of social contract – is based on the analysis of situations in which the initial contract is concluded by two parties, but its effects, especially resulting costs, are to be paid by a third party. This model reflects at least one cardinal social feature of the round tables set in ECE. There, the effects of these negotiations and the costs of the future reform were to be dealt with by the whole societies: the “third party” or “people” who demonstrated on the streets, or, as in the Gdańsk shipyards during the pioneer negotiations in Poland in 1980, were looking through the windows but did not directly participate in the negotiations. Such a model is used by authors who assess the utility of a contract negotiated between two parties by the transaction costs and the concluded bargain. As it is argued, there is a great difference between the economic and the political bargaining. In the first case, the principles of free market operations constitute an intervening variable which, in the long run, influences the vested interests of the engaged parties. For instance, the long run perspective and the intervention of the market may lead the original two parties to restrict any close cooperation at the costs of the third, if the estimated costs of such cooperation would be too high and the gains too small. Therefore, calculations of costs in the long run lead parties to choose the best solution and not necessarily the immediate vested interests. Political bargaining, however, in contrast to economic contracts, is aimed at a political compromise between conflicting interests on which the third party – the “people” – has no institutionalized influence. Furthermore, the calculation of costs in the

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long run is here very problematic, since they are totally unknown. Hence, one can add that in this situation often observed is an interesting stance taken by the actors participating in the risky and not at all foreseeable transformations: namely, to grasp as much as one can. The important conclusion – and a lesson one can learn from neo-institutional economic theory – concerns the results of political transactions for the third party: in our case, the society unrepresented in the bargaining process. In light of this theory, there exists an even more profound difference between economic transactions which do not affect a third party, and such transactions in which the engaged parties represent power that may affect the third party adversely – that is, external costs may spill over onto individuals outside the contractual relationship. In that case, as the authors of this theory observe, a contract becomes a “trade” or even a “deal” subject to the suspicion and moral evaluation of the participants in the negotiations. This could lead to a great disenchantment in the bargain, the engaged parties (especially the opposition), and of the emerging order. Certain empirical features of the concluded agreements in East Central Europe, the important negotiations hidden from the public, and the characteristics of their participants suggest too that their nature was that of “deals” – that is, of contracts between two parties who profit from them. The negotiators come to power, assume privileges, and seize economic opportunities notwithstanding the social force that stood behind them, the thousands€ of “unsung heroes,” millions of members of the Solidarność movement, stubborn peasants, mothers of soldiers, independently thinking intellectuals, or simply, as a Czech author put it, the “people” who enthusiastically celebrated their victory but would now like to go on with their daily affairs (Priban 1999: 37, 38). As Buchanan and Tullock have noted, when a deal is struck at the costs of the third party, “[b]reakdowns and failures in the operation of the system are attributed to the ‘bad’ men, not to the rules that constrain them” (Buchanan, Tullock 1962: 281). Therefore, the economic theory of rational bargaining turns our attention not only to the rationality of collective decision-making, but to the potential vulnerability of the bargaining process – to the moral evaluations expressed by the third party affected by its outcomes but on which it had limited influence. This indicates possible sources of a delegitimation of the political elites – especially the former dissidents whose authority was of a moral nature and who claimed to represent ethical values.



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Thus, if the normative model of communicative rationalization of the system change stresses procedures of negotiations between roughly equal sides whose efforts aim at collaboration and understanding, the openness of the round tables and the broad – indeed unlimited – public participation in them, the contrasting strategic model of economically rational bargaining emphasizes the costs of the concluded compromise and notes that these will be paid by the society as a whole. It also suggests possible moral evaluations of the bargaining parties by the non-participants who, nevertheless, have to bear the costs of the transformation. Round tables and the legality of the transformations As two prominent authors have observed “… at least in Poland and Hungary, the break with communism and the building of new regimes has become to an important extent a legal problem, one of the transcendence of part-state legal structures and practices.” Moreover, as both authors stress “… the East European transitions did not only aim at constitutionalism and the rule of law, but also the process of change itself which, in all countries with the exception of Romania and Soviet Union, took a constitutional form. This paradoxically involved taking the existing communist constitutions seriously for the first time (an odd proposal of the dissidents!) and using their own mechanisms to produce constitutions with an entirely new spirit” (Arato and Sajo1991: 101). Also round tables were political as well as legal events. As such, they contributed importantly to the consequent inclusion of the rule of law€ (or rather the law-governed state principle) in postcommunist constitutions. In light of classic theories, civil society and the law, or civility and legality, are as inseparable as two faces of the same coin. As€ is argued, a high respect for the law constitutes a type of “civil religion” that indeed “steps into the shoes of religion in an earlier era” (Dezalay, Garth 2002). As such, it also legitimizes profound political change in the eyes of the outside world. Concerns with the “legality”€ of efforts aimed at dismantling the system in ECE prevailed and legality itself posed – besides the notion of “self-limiting revolutions” – a key component of the semantics promoted by members of the democratic oppositions, setting the events of 1989 apart from earlier revolutions.

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The initial description of these events as “lawful revolutions” came from Hungary – notably from a prominent intellectual and participant of the Hungarian round table, Janos Kis, as well as from Kalman Kulcsar, the then Minister of Justice in the still communist government. For the former author, the parties seated at the Hungarian round table were mostly interested in securing stability and continuity for the legal order in Hungary (Kis 1995). The pre-1989 order was not questioned, “not even for one day” (Kis 1995a). This position was later strongly supported by the actions of the Hungarian Constitutional Court, especially by its then President, Justice Laszlo Solyom who often stressed legal stability and certainty as dominant features of the Hungarian change (Solyom 2000: 20, 21, 39) and himself described it as a “revolution under the law” (Solyom 2000: 39). This attitude had also been highly evident in the writings and activities of persons like Vaclav Havel; it was practiced by Charter 77 in Czechoslovakia, by the Committee for the Defense of Workers in Poland, and by the oppositionists of the Polish RT even at the price of€losing their credentials among the populace (Skąpska 1992). In the then Czechoslovakia, as it is argued, Charter 77 was not a political program, but a”… list of human rights and civil liberties violations by the communist regime” (Priban 1999: 33). Thus, in the struggle between€the authorities and dissidents in Czechoslovakia, the strategy of the latter was “legalistic” and clearly noticeable even after November 1989. As noted earlier, the events of 1989 were characterized by a striking”… persistence of constitutional and legal documents adopted by communist legislation” (Priban1999: 47). In Czechoslovakia, as in any other East Central European country, the slogan of the legal positivists – “Justice according to the law” – bore strong critical and reconstructive meaning when confronted with the communist appeals to classlessness and to the rights of particular social classes, not to mention the revolutionary consciousness of the proletariat. Thus,”… the rule of law became one of the most important revolutionary demands. The revolutionary vocabulary (…) was accompanied by a legal positivistic vocabulary demanding the re-establishment of legality, due process of law and generally binding impartial procedures” (Priban: 1999: 45). Similarly in Poland, the legality of the change was summarized in a postulate that the revolution be conducted by legal means (e.g., by initiating legal proceedings against the government or sending petitions to human rights organizations) instead of an armed revolt. An€important factor in these efforts aimed at the protection of legality



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had been past Â�experiences with “revolutionary people’s justice” to which totalitarian states referred, and with the legal hypocrisy of late communism. In the case of round table talks held in ECE in 1989, legality presented not only a key element structuring the negotiations and lending a guideline for further change. It was also a crucial component of the whole package of concepts related to liberal democracy as a postcommunist transformation telos – including human rights, freedoms and liberties, protection of private property, or freedom of negotiations. As has already been demonstrated, notions of legality and of lawful revolutions respectively could have several meanings. First, they could refer to the legal positivistic meaning of legality – unquestioned formal legality limited by previously existing law and the procedures. Second, these lawyers’ notions of legality could be supplemented by the protection of human rights which broadens the legality conceptualization, providing the system change with a new semantics which appeals strongly to citizens. It paves a clearly defined path for future development, as in the case of German constitutionalism where the contents of rights are indisputable and their protection cannot be modified via normal politics. Third, the notion of legality could refer not only to human rights but also to legal and constitutional history and the daily life experiences of citizens, linking the liberal ideal with locally rooted interpretations of it. In the second and third case the notions of legality would import not only formal, but also an important axiological and sociological rationalization and legitimization to round table outcomes. All three notions of legality bring some order to the potential chaos of the overwhelming change. In the first case of the lawyers’ notion of legality, order is protected by current law – i.e., in the case of ECE, by the still communist legal order because of its axiological foundations in principles of legal certainty and predictability. To some extent this is also true with respect to human rights protection, if such rights have already been expressed in communist constitutions or guaranteed by the then existing law. In the third case of socially bounded notions of legality that extend the narrow lawyers’ meaning, this refers to a contextually and even existentially bound order, one which could find resonance in the consciousness of citizens and reflect their expectations of human rights protection and justice. The anticommunist opposition – predominantly in Hungary, but also in Poland, and to some extent in Czechoslovakia, too – praised

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binding law as a positive contrast to the legal hypocrisy of late€Â�totalitarianism. The activists lauded it with zealous, revolutionary€consciousness, characteristic of preceding revolutions (the French and Bolshevik in particular). Thus efforts aimed at a revolution Â�conducted under existing law could be understood and justified and€ the€ final outcome was the legalization and judicialization of the transformation. The subordination to the law on hand was perceived as positive in comparison with “revolutionary” conceptualizations of justice. Especially with regard to the Hungarian round table negotiations, the notion of formal legality – of legal continuity – was supported by the values of legal certainty and predictability (Sajo in Elster 1996a: 78). However, this adherence to formal legality and the prevailing value of legal certainty became a salient feature of negotiations in other East Central European countries, too. As we will see in the next chapters of this book, this relationship between the formalized and general legal language of law, and the authentic experiences of people living under communism but ultimately experiencing its transformation, represented an important challenge to postcommunist constituÂ�tionalism. Round table negotiations were able to pave the ways for further institutional development: the results of the negotiations, the struck compromises were subsequently legalized by new parliaments. Hence the notion of legality took on yet another meaning. The round table negotiations were seen as sui generis sources of law based on the normative proposition that pacta servanda sunt. Thus, the tables were characterized as pre-constitutional or quasi-constitutional events (Elster 1996a: 5), and, as observed with regard to Poland,”… mechanisms created at the RT [round tables] have survived the transition and have taken on a life of their own. The division of powers, the strong presidency, and the Senate are only the most obvious examples of the durable legacy of the RT. A great deal of legislation introduced by the parliament has been consistent with Solidarność demands at the RT” (Osiatyński in Elster 1996a: 21, 22). On the other hand, a great deal of legislation as well as provisions of the future constitutions resulted directly from the demands of the communist party representatives. In Poland, this entailed the reintroduction of the presidency. This institution was initially tailored to General Jaruzelski – the very person who had declared Martial Law in 1981 would be the first president of the democratic state. As a result of the settlement reached during the initial negotiations conducted in Poland,



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the first semi-democratically chosen Parliament was to guarantee an overwhelming majority for delegates designated by the communists: the initial contract granted them sixty-five percent of the seats in the Lower House. One has to underline the fact that, according to procedures in effect for the preparation and enactment of the constitution, it was precisely from the Sejm that the members of the first Parliamentary Commission would be drawn to prepare amendments to the binding document of 1952. In Hungary similar mechanisms were decisive not only in the proclamation of the first, democratic elections, but on the establishment of the strongest Constitutional Court in Europe – thus determining the entire constitutional order for that country. Considering legality to be one of the most important features in the overthrow of totalitarianism in ECE, and considering its contribution to the emerging postcommunist constitutionalism and the changes in the political and constitutional cultures of postcommunist societies, conclusions are not easy to reach and appraisals are ambivalent. On the one hand, negotiations were subordinated to existing law and to the meaning of legality as a “lawyer’s formal legality.” Adherence to the law in effect was part and parcel of the negotiations. This kind of legality is easily welcomed and especially by societies who would like to return to their daily affairs as soon as possible after years of struggle with an oppressive system and tired of the overwhelming politicization of their lives. It is also welcomed by those who invented “goulash communism,” and the instigators of the privatization of national property before 1989 who emerged as the future great beneficiaries of the changeover. It is to be questioned whether this kind of legality – rather far from the communicative rationality model, i.e., on mutually agreed upon rules and procedural principles considered fair – carries enough transformative potential and bears enough charisma to turn postcommunist citizens demonstrating on the streets into members of a future polity composed of active citizens undertaking responsibility for future state functioning. The “juridification” of the round table negotiations represented an important value for East Central European societies as a whole, not only for the round table participants: they secured a significant auxiliary of legal certainty and predictability. Here one caveat with regard to Poland must be made: even formal rules have been too easily broken here in order to fulfill the promises made by the negotiating parties. Thus, the semi-democratic first elections in Poland had to be repeated after the smashing defeat of the communists, very much against the then-binding election law.

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It is still not clear whether the main actors of the RTs could have foreseen the social dangers of continuation and preservation, not only of legal institutions in the name of legal certainty and predictability, but of the political and social relationships lurking behind them such as vested interests. Former functionaries wanted to protect existing rights and privileges inherited from the former regime, or immunity for gross violations of human rights, or what could be acquired through the privatization of the national economy. Perhaps this was unavoidable because – as has been argued – legal continuity characterizes all revolutions in the end. One can quote here the prominent legal historian and sociologist of law, according to whom even the most violent and comprehensive modern revolutions have not brought about a complete breakaway from existing law, yet if they did, they later returned to the legal order after experiencing uncertainty and chaos (Berman 1983). In 1989, it was strongly believed that legality brings order to the chaotic and unprecedented outcomes of negotiations; it protects the interests of citizens and is thus unavoidable for the functioning of the state. According to the cited author, the revolutions in law are not excluded, but, “[a] radical transformation of a legal system is, however, a paradoxical thing, since one of the fundamental purposes of law is to provide stability and continuity. (…) In law, large-scale, sudden change – revolutionary change – is indeed “unnatural” (Berman 1983: 16). He further comments, “Each of the great revolutions experienced an interim period in which new laws, decrees, regulations, and orders were enacted in rapid succession and as rapidly amended, repealed and replaced. Eventually, however, each of great revolutions made its peace with the pre-revolutionary law and restored many of its elements by including them in a new system that reflected the major goals, values and beliefs for which the revolutions had been fought” (Berman 1983: 29).

However, as indicated above, legal certainty and predictability need not be the be-all, end-all, sole aim. One has to emphasize that the great modern revolutions also generated crucial legal innovations. First and foremost was the tantalizingly powerful ideology of individual freedoms and liberties protection that enchanted European and American societies and proved to be a leading force in the formation of the classic European and American constitutionalism. These ideas greatly impacted on changes in the domain of public law, in the protection of political freedoms and liberties, and in the domain of private law in the protection of economic freedoms. All of these ideas are summarized in



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the contemporary notion of legality as foundation of the Western legal tradition, and the legitimization of the contemporary legal authority (Berman 1983: 33 ff; Friedman 1992). Presently, In East and Central Europe there are the more ambitious conceptualizations – for instance, those referring to human rights protection, individual and collective. This one can find in the debates of those democratic opposition activists who were actively engaged in the protection of individual and collective human rights. It is worth noting that, in Poland, the serious debate not only on individual human rights, but also on the collective, cultural rights of minorities started at the beginning of 1980s, just after the first Gdansk Agreement of 1980 was signed. Only then were the issues of the German, Ukrainian, Lithuanian, and other minority rights finally raised publicly in Poland, and statutes dealing with rights to language, to confession, or to the original spelling of names were proposed as a result of the civil society efforts. All this emerged out of the debates conducted at a very low level: in particular, in the Solidarność movement circles in 1980 and 1981. Such a broader notion of legality was very much supported in the Polish round table agreement of 1989, especially in the establishment of various “spin-off ” round tables that dealt with human rights protection in various domains. The most interesting concept of legality not debated at the round tables came from the Czech intellectuals. In their most powerful critique, the “socialist legality” concept was seen as not only a rhetorical veil of terror, but a means of ritualization and petrification of public life, as well as bureaucratization of language. Thanks to such authors as Vaclav Havel, as well as other Czech dissident elites, quite novel ethical and existential aspects of law and legality came to be debated. To these issues I will return in subsequent chapters of this book. Constitutional outcomes of round tables The round table talks between socialist regimes and dissidents stand as constitutional moments across the whole of Eastern Europe. However, there are significant differences among the postcommunist countries specifically with regard to their constitutions – the time and process by which each was proclaimed as well as its contents. Among others, certain elements distinguish the four East Central European countries more closely analyzed in this book. With respect to these, one can differentiate between the pioneers and followers. Ironically, the pioneers

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were ultimately the last in decreeing a new constitution. As a matter of fact, one of them – Hungary – still functions under the old constitution of 1949, albeit heavily amended, while another – Poland – did not ratify her constitution until 1997. In contrast, the followers – the Czech Republic and Slovakia – proclaimed their respective constitutions in 1992 with their “velvet divorce” just behind them. It is not difficult to see that, in the case of Hungary and Poland, the former nomenklatura had an important impact on the constitutions and the measures by which these were composed and finally endorsed, whereas in the case of the Czech Republic and Slovakia, the precommunist past was of importance. Here the former democratic traditions of Czechoslovakia as well as the unsolved old problems of the relationship between the two separate nations played a significant role. In the words of a Czech author, despite the fact that the Czechoslovak constitution of 1920 purported to establish a single nation, this was a “constitutional, political and cultural fiction” (Priban 2004: 424). According to this author, tensions between the civic and ethnic traditions in due course led to a splitting of the country after 1989 (Priban 2003: 425).4 The substantive differences between the four constitutions are considerable, despite the fact that all these countries had communist constitutions as a point of departure in institutionalizing liberal democracy. Although next chapters of this book will explore this further, here it would be worth outlining briefly especially those factors directly linked to RT agreements. The case of Hungary is symptomatic. There the Hungarian communists were negotiating at a round table with a team of dissident forces (EKA). The Party (Hungarian Socialist Worker’s Party, MSZMP) first raised the issue of a new constitution before its power was even seriously threatened. Moreover, it embarked on a process of legal reform in 4 ╇ The dynamics of the Czech and Slovak relationship, the bargaining as well as the dispositions of its primary participants and leading political figures – President Vaclav Havel, Czech Premier Vaclav Klaus and Slovak Premier Vladimir Meciar – are analyzed by Katerina Mathernova (1993). The document which was to be proclaimed later as the Constitution of Slovakia could also be used as part of any federal arrangement although its opening lines were “We, the Slovak nation” and it defined Slovak citizenship. Interestingly enough, this document was to be ratified by a referendum which never took place. On the rash dynamics of events leading to the “Velvet Divorce” see Constitution Watch: Czechoslovakia, Eastern European Constitutional Review, vol. 1, no. 2, Summer 1992: 3; Constitution Watch: Slovakia, Eastern European Constitutional Review, vol. 1, no. 3, Fall 1992: 10; and Constitution Watch: Czech Republic, Eastern European Constitutional Review, vol. 2, no. 1, Winter 1993: 4–5).



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the 1980s and prepared a draft constitution in 1988. With that in hand, the communist government possessed a legal strategy enabling it to claim credit for democratic development, while preserving its privileged position in the reformed political order. Moreover, government representatives were experts in legal matters, having in their midst officials from the Ministry of Justice and the very Minister of Justice himself. As was observed, whenever the opposition was not fully compliant, the negotiators representing the Party threatened the former with their power to rush the new legislation through the communists dominated parliament, notwithstanding any opposition disapproval. In this way the government drew up the 1949 constitutional amendments while simultaneously maintaining that the opposition had endorsed the legal products of the negotiations (Sajo 1996: 76–77). The RT talks produced a radically amended constitution which passed the communists dominated parliament without discussion. Ceremoniously instituted on 23 October 1989, the 33rd anniversary of the 1956 Hungarian Revolution (Paczolay 1993: 24), it was initially to serve as fundamental law only until a new constitution could be designed. Until this day, however, the amendment process continues along with each new election; thus, all political parties – the entire political spectrum winning any particular election – have contributed to the modifying of the old constitution. Nevertheless, its principal framers were the parties involved in the RT talks (especially the communist party), as well as the two parties empowered by the 1990 elections: the postcommunist Hungarian Democratic Forum and Alliance of Free Democrats. Because the new government had to deal with issues of immediate practical importance – above all lustration and decommunization, and economic reform – the role of the Hungarian Constitutional Court became of burning importance, contributing further to the emerging constitutionalism in the new state. Although the role of constitutional courts and tribunals is great throughout postcommunist Eastern Europe, in Hungary the verdicts, the accumulated precedents of the Court compose an “invisible constitution” (Sajo 1995). Hence, the Hungarian constitutionalism has at least two pillars: the old, constantly amended 1949 constitution, strongly influenced by the outcomes of the Hungarian round table (and the influence of its most powerful participant) and the changing verdicts of the Hungarian Constitutional Court. According to its famous Chief Justice – currently President of Hungary Laszlo Solyom – the quest for a new fundamental law in Hungary became wholly unnecessary (Sajo 1997: 37).

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In Poland the course of change was just the reverse but also illustrates the strong agency of the former communists in the process of transformation. The Polish Constitutional Tribunal was established in 1986 by the still communist government, a few years after Martial Law was imposed and then repealed; next the Stalinist constitution of 1952 was heavily amended in 1989; and finally a new democratic constitution was proclaimed in 1997. In 1992, the Polish Sejm ratified the socalled “Little Constitution” to clarify the relationship between the executive and legislative branches of power. Until 1997, not only was there no full constitution, but the verdicts of the Constitutional Tribunal were not final and could be overruled by a two-thirds majority in parliament. As in Hungary, important amendments had been introduced to the Polish Civil Code before 1989, and substantial new laws on economic freedom were proclaimed which opened the door to the privatization of state-owned enterprises and the formation of economic enterprises by private entities. As previously mentioned, the round table talks in Poland led to a compromise first elections which were only partially free. At the RT, perhaps sure of their power, the communists agreed to restore the upper chamber of the Polish Parliament, the Senate which had been abolished after World War II. All 100 seats in the Senate would be up for the taking, but only 35 percent of the seats in the lower chamber, the Sejm, were available to representatives of the dissidents. However, in the elections held in June 1989, the candidates of the democratic opposition won 99 percent of the Senate, and fully 35 percent of the Sejm. These semi-democratic elections enabled the democratic opposition – candidates representing the Solidarność movement – to propose amendments to the old constitution and draft a new one which would complete the change of political order. This would take on symbolic meaning as a “rebirth.” This, however, did not take place for many years and the process of constitution-making lost its momentum. As argued here, the failure of the opposition in Poland to produce a new constitution was due to its belief in the staying power of the communist regime, as well as its idealist visions and lack of considerations for practical matters of government (Osiatyński in Elster 1996a). Typically, efforts to draft a new document in Poland were successful only after Aleksander€Kwaśniewski – a representative of the communist regime at the round table – was elected president in 1995. Kwaśniewski had also served as Chair of the Polish Parliament’s Constitutional Committee after the reconstructed and renamed – now called Democratic Left



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Alliance – former communist party came to power in 1993. The draft constitution – seen as a compromise in public discourse – was, in reality, composed of complex and often conflicting provisions, proclamations of social market economy and guarantees of a broad range of social rights, provisions protecting individual property as a foundation of the government, and insubstantial declarations of family farm protection. One should add that, finally, during the ratifying referendum, only 42 percent of the electorate participated, out of which 53 percent voted for the new constitution of Poland. The new constitutions of the Czech and Slovak Republics have a different history. Whereas the constitutionalization process in Hungary and Poland was initially dominated by the stronger party of the RT talks, i.e., by the communists who took the lead position, in Czechoslovakia this process was determined by legal procedures established in the Stalinist constitution, particularly procedures determined by the 1968 amendments to this document. Nevertheless, one could venture a thesis that, in the Czechoslovakia of 1990–1992, the rules of the game had been, to some extent, established by the former dissidents – especially by the very active and engaged President Vaclav Havel. Here, too, the legality of the Czechoslovak Velvet Revolution is significantly different. After 10 December 1989, power was in the hands of the opposition which possessed unrivaled authority in drawing up a new constitution (Kraus 1995). More importantly, the dissidents in Czechoslovakia had been working on a new document prior to November 1989. Subsequently, one of the most significant tasks in the new CzechSlovak relationship was to build from the “bottom-up” and forge a new treaty between the two republics, consistent with international law. However, surprisingly enough, the point of departure for the opposition in Czechoslovakia was also a Stalinist constitution with its later amendments; this determined procedures and further actions. Thus, the 1968 Law on Federation – an amendment to the Czechoslovak Constitution of 1960 transforming Czechoslovakia into a federated state – provided for a Federal Assembly with two chambers. According to that law, representatives to the upper chamber had to be elected by the entire population, whereas the lower chamber was comprised of 75 representatives elected in Czech lands and 75 elected in Slovakia. In voting any law, both houses were governed by the anti-majority principle. It also stipulated that the ratification of any extraordinary legislation required a three-fifths majority of both Czechs and Slovaks in the

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lower chamber. Therefore, a mere 31 national deputies in the lower chamber (the Chamber of Nations) could block any proposed constitutional amendment (Cepl 1993: 30). Quite in accord with the previous hypocrisy, the old constitution proclaimed that the federated state presupposed the existence of republic-level constitutions, but no such documents had ever been proclaimed. Thus, the immediate task was to ratify two republican constitutions and a third one for the whole federation. This was possibly the strongest point of early disagreement: while for the Czechs, and especially for Havel, the adoption of a new federal constitution was a priority, for the Slovaks the priority it was power-sharing, i.e., decreeing a new treaty between the two republics, in accordance with the above-mentioned resolve to provide the relationship with a solid footing. Eventually, these different priorities – the stress on drafting a new federal constitution or the republican ones first, together with the results of election in 1992 – the two republics were separated and the Velvet Divorce was accomplished (4). One may conclude that the development of the Czech and Slovak relationship after 1989 was deeply influenced by legal procedures set in motion with the Stalinist constitution of Czechoslovakia. Consequences of the round tables in subsequent change Round tables are already seen as historical events, yet they initiated changes hitherto unfinished. From the perspective of postcommunist constitutionalism, at least three portentous legacies of RTs have determined subsequent development. The first of them is linked to the political consequences of initial compromises or deals, i.e., the long-lasting effects of the tables for the “third party” – for the average person who did not participate in the negotiations and had little impact on the contracts concluded. Because of these effects, the losers in the transformation process are currently placing the ethical consequences of the round tables under severe criticism. This part of society questions the entire democratic liberal order instigated by the RTs, and raises questions concerning the democratic and liberal constitutionalism itself. The second legacy of the round tables as vehicles of “lawful revolutions” is the stress on legality, understood as protection of certainty and predictability. The formal conceptualization of legality is confronted by the enormous tasks the new democracies have been facing – above all those of reckoning with human rights violations committed by the



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functionaries of communist regime. The third and final legacy comprises the semantics of the change – a certain degree of semantic chaos resulting from the conflicting meanings of the current legality, as well as the meanings of the revolution itself. Examining this from yet another angle – from the possibility of creating a postcommunist constitutionalism – the legacy of the round tables is even more significant but also ambivalent. The negotiated character of the profound change led to the lack of a “clear rupture,” typical of the Eastern European revolutions. In the case of previous modern revolutions, such a “zero point” was, as in France, even emphasized by the introduction of a new calendar. Elsewhere, it was marked by the proclamation of an innovative constitution expressing an entirely new theory of society; still elsewhere it was heralded by other dramatic and symbolic events clearly separating “the old” from “the new.” Nothing like that has happened in Eastern Europe after 1989. This lack of a clear break has several consequences: structural, moral and cognitive-symbolic. Its structural consequence lies in the emerging division between the “winners” and “losers” of the transformation. This new divide overlaps to a considerable degree with old ones and leads to a new form of social exclusion of those who have found themselves excluded from participation in the new distribution of wealth and power. Its moral consequences consist in the already mentioned possibility of accusing the RT participants of making a “deal” at the price of the whole society, but also in a lack of clarity with respect to evaluation of the ancien regime. Both these factors contribute to the difficulties in postcommunist reconstruction. The important cognitivesymbolic consequences of the round tables are situated in the blurring of the borderlines between the old and new regimes with profound and indeed even axiomatic significance for the formation of postcommunist constitutionalism as a theory of society within society, or a theory of society about itself and for itself.

Chapter One

A Constitution as a Theory of Society within Society What is a constitution? What purpose does it serve? There are at least two answers to these questions, both of which reflect some principal theoretical differences with regards to the normative model of a liberal constitution and its functions. I will call these approaches the instrumentalist and the reflexive. According to proponents of the first, instrumentalist approach, a constitution should act upon a society, or even against it, as an instrument of state strategy first and foremost. As it is noted, Constitutions can be understood as precommitment strategies, being used as a founding document for practical and concrete purposes, including the provision of protection against the most likely problems in the usual political process. Constitutions should therefore work against each particular country’s own most threatening tendencies. We might think of constitutions as counter-cultural in this respect (Sunstein 1996: 226).

In light of the proposition that such a document is a precommitment strategy, its framers and interpreters construct it and act upon the society “from above,” before any constitutional community has a chance to organize itself. Therefore, the formation of constitutionalism also consists of actions imposed upon a society in order to implement reforms, to eliminate “threatening tendencies,” or simply to initiate – also from the top down – a process of political nation-forming. Similar suggestions are formulated by those authors who stress constitutional constraints (Holmes 1996), and debate the new constitutions in light of institutional engineering (Zielonka 2002) in new democracies, i.e., those being made “from scratch” (Fish 1996). The best historical illustration of a precommitment strategy is the constitution of the United States of America. There, the Founding Fathers debated and proclaimed a constitution indeed as the founding document of the American political nation. A more contemporary illustration of a precommitment strategy is the West German liberaldemocratic constitutionalism initiated by its “Founding Fathers” in 1949, after important decisions on the future of the western territories were made by the Allied Forces.

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With respect to postcommunist constitutionalism, a substantial body of empirical findings exists which would certainly support a critical evaluation of the existing legal and constitutional cultures. It would justify the Hobbesian concept of postcommunist societies as “nasty, brutish and poor,” and a constitution as a necessary “counter-cultural” instrument of their transformation into “civilized” democratic liberal polities. One can quote offhand hundreds of examples of organized crime, corruption of public servants, contempt for law, a lack of democratic competence, and populism. It would also not be so difficult to justify assessments of the new constitutions as unhealthy compromises and point to their actual negative impact on the construction of effective government (Sunstein 1993: 225–232). Inspired by such criticism and an assumed public wasteland after the collapse of communism, many Western advisers and legal reform policymakers have supported€the concept of imposed constitutions in initiating processes of Â�reconstruction. They used to bring drafts of constitutions to Eastern Europe, encouraging a copying of the general ideal of “Western constitutionalism” according to a simplistic vision in which the “consolidated” democracies serve as a benchmark for judging how far transition has advanced (Sadurski 2005: 9). A contrasting, reflexive approach could be summarized in the slogan, “People, your power has returned to you.” That slogan was used by Thomas Masaryk in his inaugural address as the first President of Czechoslovakia in 1918, and it was adapted by Vaclav Havel for his New Year’s address after being elected President of Czechoslovakia in late December 1989. As we have been reminded by a Czech author, this slogan was also used in a Czechoslovak pop tune from 1968 and became the most popular motto of the “Velvet Revolution” (Priban 1999: 38). In response to the initial question on the purpose of a constitution, one assumes here that such a document represents a broad, basic, societal and political consensus enabling a society to resolve future conflicts, protect values, fulfill expectations, and, most importantly, define itself anew as a liberal constitutional community. Thus, a constitution comprises an institutional framework for consolidation and enhancement of the civil society and the existing social and cultural capital. As a result, according to such a view, liberal democratic constitutionalism consists of a most difficult process of communication, as well as the mutual adjustment of the various expectations, world-views,



a constitution as a theory of society within society 53

and ideals characteristic of “the people,” the politically organized civil society. Both of these approaches are of a normative nature, but both also refer to the empirical realities of post-dictatorial/post-totalitarian societies. Both of them are based on certain theoretical convictions that concern, firstly, the concept of a constitution itself; secondly, the position, role and legitimization of the framers and interpreters of constitutional provisions; and, thirdly, the role of society. As I am going to argue, the instrumentalist strategy “from above” is seriously deficient if applied in the unique, ambiguous and novel circumstances after the collapse of communism in ECE. Moreover, if this strategy failed – quite possible due to the above mentioned novelty of circumstances – it could lead to a certain “backlash,” that is, to a rejection of liberal constitutionalism. The reflexive, “bottom up” strategy, on the other hand, could easily lead to relativistic interpretations of liberal constitutionalism, unless it engages and enhances such social values, visions, expectations, and traditions which support the development of liberal democracy. In order to be effective, a strategy should involve the available social capital and utilize the existing democratic and liberal traditions and ideas whenever possible. It would make a constitution workable and legitimate it in social values and norms, and, in recurring fashion, it would help implement the very values and expectations that motivated society to destroy the illiberal regime. Both approaches are informed by the current concepts of democratic-liberal constitutionalism. With regards to the instrumentalist approach, this entails rational choice theories applied to large-scale phenomena. With regards to the reflexive one, it would be theories that stress the importance of rhetorical, semantic, axiological and ethical aspects of such fundamental institutional arrangements as a constitution. One and the other reflect a specific reading of the postcommunist empirical reality. Postcommunism critiqued In spite of a formal recognition of the status of all new members of the European Union as democracies with free market economies, skeptics express important concerns about the future of their postcommunist associates. Opinions prevail that the changes are neither irresistible nor

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irreversible. Noted is the corruption of public servants, as well as the growing social divisions and discrepancies which take on the form of renewed old divisions between “us” (the people), and “them” (those in power) – the latter inhibiting consolidation of the public sphere and the formation of a social consensus. This split overlaps with a new one between the “winners” and “losers” of the transformation and the European integration process. The old, as well as new divides cast a deep shadow on the postcommunist makeover. Moreover, not everywhere is the change taking a promising turn. There are some significant, sad examples of a retreat from democracy€– as Belarus continually demonstrates. After only a few years of attempted reforms, the country has relapsed into dictatorship, and legal and democratic institutions have been suspended, not without considerable popular support. In other countries a revival of nationalist, chauvinist, and imperial attitudes and celebration of a totalitarian past has aroused fears; noted are cases of östalgie or even of an idealized redbrown fascist past. In still other new democracies the increased penetration of state structures via evermore visible corruption, and a peculiar identification of liberal democracy with sheer personal wealth awakens doubts about their future (Nodia 1996). And this is not to mention those post-Soviet states in which a mixture of the former communist party cadres, political police, mafias, oligarchies, and the nouveau riche is carving up previously nationalized property. All these developments in Eastern and East Central Europe further support an argument that history is not the neat and tidy accomplice of designers, even of enlightened and committed people. Such misgivings are based on empirical data regarding participation in elections, especially in those countries which initiated changes (Appendix One). The data illustrate initial enthusiasm fading away, and the growing and deepening popular disenchantment turning into cynicism. As the numbers show, turnout in national elections is not breathtaking when confronted with participation in the first, or reinÂ� troduced, democratic elections in other parts of the world. In Poland, and other countries of ECE, support for the government is far less than enthusiastic after the initial wave of euphoria accompanying the first historical agreements with the communists back in the late 1980s and early 1990s. Highly discouraging is participation in referenda – this most advanced form of direct democracy (Appendix Two). In Poland and elsewhere, low turnout in elections is accompanied by growing criticism turning into distrust toward the government and its



a constitution as a theory of society within society 55

Â� institutions (Appendix Three). It should also be noted that political parties have a very brief lifespan; in fact, nearly no Polish party from the beginning of the 1990s still exists today.1 Election results raise deep doubts as to the essence of the change when the very same high-ranking communist officials come to power as newly remodeled social democrats. Equally discouraging developments manifest themselves as blatant populism, winning considerable public support of a disappointed electorate in Poland and Slovakia, as well as emerging public opinion poll democracy, meaning the growing impact of the results of public surveys on political decisions.2 The data on Hungary illustrate the passivity and polarization of that country’s society.3 In the Czech Republic, the criticism regards partisan arrangements made above the heads of the electorate, called “neonormalization” (Siklova 2003: 93).4 Partisan political arrangements at 1 ╇In light of data comparison concerning the institutional equipment, i.e. the electoral law, the level of education, gender, the structure of income and professions, especially the proportion of peasants, the level of unemployment, and age, it is argued that none of these factors has an impact on the significant difference between Poland, characterized by a very high abstention rate, and other postcommunist European countries. As further argued, the only important variable here is the unique history of Poland. This history has had long lasting effects on the consciousness of Poles, and their deeply inculcated distrust toward government. The distrust reaches back to the history of Poland’s partitioning at the end of the 18th century, the short period of political independence between the two World Wars (the second being most cruel), and the long period of imposed Stalinism and post-Stalinism (Cześnik 2007: 217 ff). This explanation may be supplemented by another one. Because in Poland the “peaceful revolution” was the making of a civil society indeed, it was a true example of a revolution from below. The disappointment of civil society with some of its imposed reforms, especially with the privatization of the economy, its unclear rules, the most profitable participation in it by the former communist nomenklatura, the lack of taking account for the human rights violations of the former regime have all led to a visible disenchantment with the transformation, and above all, with the government. However, as the new data indicate (Appendix One b), the growing number of Poles who do take part in national elections grows. 2 ╇Populist parties in Slovakia and Poland continue to win considerable popular support. In Slovakia it is the MDS (Movement for Democratic Slovakia) party led by Vladimir Meciar, a former Prime Minister as well as leading political figure in this country; in Poland it is the Self-Defense (Samoobrona) party – led by Andrzej Lepper, in 2004–2006 a Deputy Prime Minister and Minister of Agriculture – which not so long ago enjoyed a stable 12–15 percent of electoral support for nearly a decade. However, populist arguments characterize fairly all political parties, not only in Poland and Slovakia. 3 ╇ Discrepancies appear in Hungary as well as other countries. One should stress that such discrepancies between the “losers” and “winners” of transformation currently overlap with those between the “losers” and “winners” of European integration. 4 ╇ The concept of “neo-normalization” refers to the deal struck in 1998 between the Czech Social Democratic Party (CSDP) led by Milos Zeman and Vaclav Klaus’s Civic

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the cost of public rights also typify the situation in Poland. The functioning democratic constitution is destroyed by political practices and motivated by pure instrumentalism: victory in elections on the national and local levels at any price.5 Doubts about postcommunist constitutionalism are even more clearly manifest in an argument that any optimism based on progress in institution-building should be compared to the social reality, often characterized by a retreat to earlier habits and the revival of earlier attitudes and mentalities. This involves mythical thinking about the law and constitution (Łętowska and Łętowski 1996: 10), either as omnipotent tools of social change, or as less important documents far from social reality. To such criticism one can add purely instrumental attitudes towards the law which could be circumvented if only expedient for politically vested interests. Such a confrontation of institutions with reality leads to “cultural pessimism” (Krygier 1999: 77). Discrepancies between institutional design and social practice are explained by a perceived civilizational backwardness and cultural incompetence among East Central European societies (Sztompka 1993: 85), by underdevelopment of liberal ideas (Szacki 1994), by the postcommunist trauma and lack of trust (Sztompka 1999, 2001), by the weakness of the state (Holmes 1995), by mistakes made by the new constitutions’ framers lying in the constitutionalization of an excess of social rights (Sunstein 1994), by disrespect for the law and the simultaneous legal

Democratic Party (CDP) under the name of the “Agreement on Creating a Stable Political Environment in the Czech Republic.” This concept refers to evident limitations of civic rights established by this agreement since the two parties represent different views on the economy and social welfare; in place of free political competition, the “Agreement” guarantees a level of political stability. Hence “neo-normalization” recalls, in a sense, the post-1968 “normalization” in the then Czechoslovakia (see East European Constitutional Review, vol. 8, nr. 1–2, Winter/Spring 1999: 10, 11; East Central Constitutional Review, vol. 7, nr. 4, Fall 1998: 8). 5 ╇Here reference is made to very recent disquieting, and sometimes even alarming practices in Poland. Some of them are similar to those supporting the argument for “neo-normalization” in the Czech Republic. They consist in manipulation of electoral law in such a way as to makes it possible for political coalitions to be established at the cost of the electorate, i.e., a limited choice because one has to vote for an entire coalition party. These practices also entail manipulations of the regulations of parliamentary proceedings and twisting of their interpretations in favor of the ruling parties. Alarming, too, are such new practices in Poland which consist of criminal accusations against political opponents. If such accusations are not cleared by public prosecution and an inquiry is open, then, according to a quite recent law passed by the Polish Parliament in 2006, a political opponent is eliminated from participation in elections, national and local.



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instrumentalism of new, democratic parliaments (Sajo 1990: 329–351; Kojder 2002: 13), the low level of legal culture in the law-applying institutions (Zirk-Sadowski 1998), and by the pluralism of contradictory legalities (Oerkeny and Scheppele 1999: 55–76). A bitter critique of postcommunism is expressed by authors who accuse the former democratic opposition (turned new elites) of a naïve fascination with liberal orthodoxy seen as a fascination with negative freedoms and liberties. Therefore, according to the most outspoken critics of these new elites, democracies in East Central Europe define themselves as peripheral, and their political philosophy represents merely an imitation of the developed democracies in the West (Krasnodębski 2003: 19). Constitutional instrumentalism This criticism comprises an important argument for proponents of constitutional instrumentalism. They refer to a long tradition of constitutionalism as expounded in The Federalist which was based on a more ancient ancestry present in the writings of British, but first and foremost Scottish thinkers. In this tradition, a constitution is about an efficient government subordinated to the rule of law. It is an instrument of the organized polity’s creation and is envisioned as a watchdog on behalf of the future liberal democracy. Such an approach to constitutionalism refers to the concept of a cruel, uncultivated state of nature, and of Leviathan as its civilizing and modernizing factor. It also stresses the potentially anti-democratic and anti-liberal elements of culture, and a possibility of fratricidal wars or conflicts between political factions. From this perspective, constitutional law itself takes the form of an enlightened dialogue between legal professionals; it is not to reflect the social status quo. In other words, constitutionalism assumes the form of “deliberations” performed by legal professionals, i.e., constitutional justices debating on the basis of a technical understanding of constitutional law (Sunstein 1993b). Thus, constitutional law is conceptualized as a set of specified and context-less techniques which – in the particular context of East Central European transformation – could lead to the achievement of a liberal democracy despite the legacies of totalitarianism and vices of postcommunism. In light of such propositions, the formation of constitutionalism after communism means the introduction of a liberal government, the

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rule of law, and the protection of fundamental rights and liberties in the form of a straightforward, clear set of principles, and a transparent and unproblematic understanding of liberal democracy by means of a technically understood constitutional law. Therefore, a constitution stands as a grand scale instrument of social and political change. It results from the enlightened deliberations of a constitutional assembly whose members possess coherent visions of liberal democracy, and is applied by skillful lawyers and justices with clear ideas of postcommunist constitutionalism, not to mention their great legal expertise. A strictly instrumental, and sometimes also technical approach to constitutionalism is supplemented by the sociological concept of a “top-down” revolution introduced and propagated by enlightened leaders of the society (Dahrendorf 1997: 65). In sociological theory such an approach is supported by theories of rational choice and effective government, and of the role of leaders and leadership in social change, as well as by a specific reading of sociological systemic functionalism: teleologically-oriented and directed not at maintenance of the actual social equilibrium but, on the contrary, on controlled social change and the creation of a future social order, i.e., on the establishment of a liberal democracy, efficient economy, and social justice by the enlightened elites. It also reflects sociological constructivism of a particular sort. It is believed that the introduction of such an important element as a constitution into a society – especially the introduction of the rule of law principle, its implementation, and, above all, interpretation by expert constitutional justices – will result in a chain reaction change of the whole system and produce desired results that are already well known and tested in Western democracies (Teitel 2000: 6, 19, 20). Following such ideas, the tests of success or failure of liberal constitutionalism would be based on rational choice theory applied by enlightened leaders: constitution framers, policy makers, and also constitutional justices as watchdogs.6 In the absence of enlightened leadÂ�Â� ers€ and/or of well-trained constitutional justices this theory is supplemented by the “demonstration effect” argument (“what is better

6 ╇ Considering the very poor state of their economies, a project to impose effective human rights “from above” without popular support seem unrealistic from the outset. On the costs of freedoms or a strong state see Richard Posner 1995: 71–80, see also the response to Richard Posner by Janos Kis. However, the arguments presented by Kis are also expressed in the same, rational choice-oriented, economic language (Kis 1995: 84–85).



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one can see with one’s own eyes”). Within such a calculable success oriented approach, the goals of the constitution are indisputable, because they are based firstly on the results of rational choices, and secondly have already been proven elsewhere. Moreover, instrumentalist proposals for liberal-democratic constitutionalism are made upon an assumption that constitution framers are awarded considerable discretion, are capable of making rational choices, and possess the necessary expertise. It is also believed that their rational choices are consequently used by qualified constitutional€ lawyers in their deliberations in order to attain measurable consequences. Implementation of the “demonstration effect” provision€ is based on the assumption that fundamental institutions could be employed in any environment regardless of the cost and that postcommunist governments have enough resources to execute them “from above.” To avoid the obvious simplifications typical of such postulates, arguments are made with reference to critical evaluation of the efforts to simultaneously introduce the rule of law and democracy and carry out economic transformation. The very simultaneity – one should also consider the simultaneity of internal reforms as well as unification with the outside world (notably with the European Union) – is envisaged as dysfunctional for rational constitution-making and applying. Therefore, postulates have been formulated with regard to the possible rational choices within an environment of complex and multidimensional changes. An example of such postulates is a debate on the relationship between democracy, economic reform, and the protection of human rights – the basic components of liberal-democratic constitutionalism. Based on the assumption of direct causation between a liberal economy and a liberal, constitutional regime founded on the rule of law, these postulates aimed at limiting democracy and constructing clear, causal links between the liberal economy and the rule of law are seen as prerequisites for the later development of democracy and the protection of freedoms and liberties. In this vein, it has been argued that protection of property rights and economic reform are mutually reinforcing, while democracy and the protection of civic rights seriously challenge both economic transformation and liberal constitutionalism (Elster 1993: 21, 22). The latter opens the way to unrealistic social claims (e.g., in ECE) for more “social justice.” Such claims, broadly supported by democratic Â�electorates, would challenge the very idea of liberal constitutionalism because they

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threaten the rule of law – above all, the freedoms and liberties of property owners and investors as the result of the re-distributive consequences. Claims for more social justice are dangerous: being unrealistic and often unaccountable, they contribute to a purely programmatic interpretation of a constitution (Sunstein 1996), or, if posing limits on the constitutionally guaranteed rights and liberties of property owners, they contribute to the revival of hypocritical, fictive constitutionalism (Elster 1993; significantly more balanced view in Elster 1996b: 347–360). This line of argumentation has found strong supporters among those economists and advisers to the postcommunist governments who perceived success in the authoritarian regimes of Latin America (especially Chile) and some South East Asian countries. It has been argued that success was possible there because economic reforms preceded political liberalization. The successful economic reforms eventually paved the way for the implementation of democracy and protection€of civic rights. As a third and necessary factor, or an intervening variable, there is the strong state postulate. It is suggested that the adoption of necessary but inevitably unpopular economic reforms requires a state with sufficient capacity and flexibility to push through a difficult policy introducing a free market and the protection of the rule of law while outmaneuvering political opponents (Holmes 1995). In light of the opposite arguments, economic transformation, and constitutional transition are two relatively autonomous processes. However, democratic constitution-making is of top priority. Hence, it has been contended that, “Neither the privatization of the economy nor the construction of civil society should preoccupy the ‘Eastern European Revolutionaries’ first and foremost. Rather the organization of state power (i.e., the democratic state] deserves immediate concern” (Ackerman 1996: 46–47). As one clearly sees, there has not even been any shared agreement on the possible “precommitment strategies” among the most prominent proponents. There are even more profound arguments against constitutional instrumentalism applied to the reality of modern society. These arguments refer to extra-legal values and reasons that could justify the “precommitment strategies.” At the time when The Federalist explained American constitutionalism, these were provided by Natural Law and Reason, and their most general aim lay in the “pursuit of happiness.” Currently, hardly anyone speaks of Natural Law; therefore, instead of Law and Reason, the proponents of the instrumental approach to



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a constitution stress the rules of marginal utility and economic rationality which provide necessary guidance to constitutional debate and delineate the “happiness” of conflict-ridden, pluralistic modern societies. Hence, this approach to constitutionalism is supplemented by the theory of rational public choice, i.e., the selection of the most efficient strategies to reach desired political goals. Above all, informed by modern institutional economics, this approach is based on a calculus of utility, and of the costs and benefits of particular institutional arrangements. Such arguments are formulated not only with regard to the relationship between social rights and liberal freedoms and liberties, but notably also with regard to the dilemma of the rule of law and strategies aimed at the prosecution and punishment of persons accused of atrocities against the life and property of men and women under the former regime. As is claimed, the issue of pardon vs. punishment entails a difficult and even torturing cost-benefit analysis. Thus “All costs and gains, political and moral, of pardoning and punishing must be balanced against each other” (Huyse 2006: 149). In light of another, but similarly rational and pragmatic argument, the new government cannot function without public servants, police officers, and judges and prosecutors trained under the previous regime, even if they were involved in human rights violations. The burning question emerges whether such reasons are enough to consolidate postcommunist society and to inculcate a conception of public interests around which a constitutional community could form itself. It is a burning question indeed, if one considers the moral devastation of postcommunist societies, the corruption of public servants, and the lack of understanding of a common good. the “empty space” proposition as justification of constitutional instrumentalism To avoid the difficulties caused by a great number of intervening variables – for instance, social values, ideologies and psychologies, experiences with totalitarianism, and gross human rights violations on a mass scale, more distant political traditions, and factors related to the economic devastation of postcommunist societies and states – the instrumental approach to postcommunist constitutionalism uses the “empty space” analytical proposition. Originally, this proposition€made it possible to formulate recommendations in the domain of

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politics, economy, and law on the basis of chosen factors, as if in a laboratory shut off from external influences. The “empty space” proposition could also bear other meanings, aside from the already mentioned fictitious model of theoretical connections between chosen factors (on the assumption of caeteris paribus); it could be used as an empirical generalization to explain social phenomena and processes. In the latter sense, it implies that nothing of current relevance existed in ECE before 1989. Therefore, new institutions and new constitutions have a chance to be constructed from scratch and modeled without consideration for social context. Such arguments refer predominantly, but not uniquely, to the recent, post-WWII history of East Central Europe. Because of a realistic consideration of social factors which could have diverse and contradictory effects on constitution framer efforts, as well as on the implementation of constitutional court verdicts, the “empty space” proposition turns to the no less eloquent metaphor of “a ship floating at sea” (Elster 1993: 3; Offe in Elster, Offe and Preuss 1998: 10–19). On the open sea much would be possible, even if the decisions of constitution framers and interpreters were more rational, i.e., in this context, even if they would promote economic reforms and the protection of property rights first and foremost. However, as applied to existing societies, the “empty space” proposition discloses serious shortcomings, not only because of its simplifiÂ� cation of social and political reality. In East Central Europe there were complex and vastly different circumstances from those in which the American Founding Fathers were debating their constitution. The shortcomings of this proposition consist of its peculiarly tautological nature, and the circular reasoning on which it is based. There is also reference to other analytical concepts not applicable to the unique and novel aspects of postcommunist change. In the domain of politics, the most frequently quoted arguments refer to the lack of a “political vanguard” or “strong agencies.” They emphasize also the lack of “transformative interests” as well as the low niveau of political cultures that allegedly characterized the East Central European societies before the collapse of communism (Rueb 1998 in Elster, Offe and Preuss 1998). In reality however, these arguments do not reflect, and indeed miss the specific, distinct experiences of societies to which they are applied, nor do they consider the very specific social circumstances under which democratic change took part in Eastern Europe at the end of the 20th century.



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If political culture is defined as consisting of trust in democratic institutions and procedures and of commitment to democratic rules, then such a concept would reveal only a partial truth about the societies to which it was applied. The lack of a so-defined political culture here comprises yet another self-referential argument. It was in a similar vein that the Western missionaries and colonizers assessed, for instance, the Chinese culture of the 18th century as underdeveloped, applying to it their own criteria and standards. Such a concept of political culture does not at all embrace the phenomena and processes which led to peaceful transformations on an unknown scale. It does not include “negotiated transformation,” “self-limiting revolution,” or the hopes placed in the legality of the changes characteristic of East Central European societies. As a result, instead of analysis of astonishingly peaceful and profound changes, their quite unexpected effects, and their great contrast with violent modern revolutions or political clashes in other parts of Europe (e.g., Northern Ireland or the Basque country), and the enormous efforts and sacrifices undertaken by the East Central European societies to join the European Union, one retreats to a comfortable assumption regarding their alleged political and cultural weakness. Similarly critical remarks address the concepts of political agency and political vanguard as yet another feature of the assumed “empty space.” Allegedly, in ECE (at least in Bulgaria, the Czech Republic, Rumania, Hungary, and Slovakia) there was”… no counter-elite, no theory, no organization, no movement, no design or project according€ to whose visions, instructions, and prescriptions the breakdown evolved” (Offe 1998: 11). According to Francois Furet “…no single new idea has come out of Eastern Europe in 1989” (as cited in Kumar 2001: 38). It is very difficult to avoid a remark that such observations are unfair, if one considers the intellectual, spiritual, and moral contribution of such prominent democratic dissidents as Vaclav Havel, Adam Michnik, Jiri Patoczka, Petr Pithart, Arpad Goencz, Mircea Dinescu, and hundreds of other Eastern Europeans. Using pseudonyms, publishing underground and/or living in prison or exile, their impact on political theory as well as on the political praxis resulting in the round tables was quite outstanding (see subsequent sections of this book). Here I would like to stress that the ideas they pronounced differed greatly from the cleverly pessimistic, ingenuous postmodern theories fashionable at the time.

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It is also not fair, if one considers the engagement of hundreds of thousands of Eastern, and East Central European citizens in an endeavor whose consequences were totally unpredictable – for those very citizens, not to mention nearly all Western politicians and scholars. One of the characteristics of such circumstances was the massive€ and highly visible presence of the Soviet Army within the military€framework of the Warsaw Pact on the very territories where the overthrows were taking place. These people were also engaged in the practical activities of the transformation, but did not like to be considered “visionary leaders,” despite the fact that they were the authors of outstanding and novel ideas of “living within the truth” or “political evolutionism” as a means of regime change. They were the inventors of “anti-politics” as a way of “civil society” activism or the authors of the Gdańsk Agreements in 1980 in Poland, representing a new type of peaceful revolution and model for the possible future constitution. Above all, however, such concepts as a visionary elite, avant-garde, or counter-elite in the classic sense seem entirely out-of-date. They were coined in a quite different time and space to be used for analysis of earlier, modern revolutions, of the role of revolutionary philosophers who developed models for the societies at their desks, or of avant-garde Leninist leaders who mobilized mostly uneducated peasants and soldiers. The terms are not appropriate now – neither for the analysis of contemporary changes going beyond mobilization of mass movements and demonstrations on the streets, nor for the engagement of relatively highly educated workers, students, and intellectuals (a modern civil society) in regime collapse and subsequent new government-crafting. Similar critical remarks regard the lack of grand-scale visions and utopias, emblematic of earlier revolutions. These changes were founded on principles of liberation as well as on the principle of democracy which now mean a plurality of visions and no fidelity to a grand utopian ideal. The latter – implemented in the form of all-encompassing experiments conducted in a natural laboratory – precisely represented the way of life of the Eastern European societies after WWII, and they had had enough of that. In the same vein, there is a noticeable absence of “We, the People” understood as the power-holding representatives of a democratic nation (Priban 1999: 37) – these simply did not exist since such attitudes had been forbidden. Instead, we were dealing with the presence of the “people” – the unsung heroes of world history – who formulated



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their goals in a colloquial language, mundane, and in a sense “existential” and who wanted to just live their own lives. Proponents of the instrumentalist approach to postcommunist constitutionalism and adherents of the “empty space” proposition or a “void” hint also at the difficult issues of resources, legitimacy, and agency. Here a circularity of reasoning is the most evident and a question appears as to who (if not foreign advisers) and on what grounds€– considering the death of a “transformative vanguard” and an apparent lack of weighty original ideas that could convince the “masses” – would have the expertise and skills and legitimized mandate to make choices concerning institutional priorities. Summarizing, a purely instrumental approach to postcommunist constitutionalism as a counter-cultural strategy applied in ECE – and based on a “demonstration effect” proposition – arouses serious doubts. In addition, the great fiscal expense of instrumental constitutionalism€ is to be taken into account, not to mention the great costs of a “strong state,” and the bad experience with a strong, totalitarian state on the part of the citizens. Here one can recall the observations of Adam Michnik (1984: 100) who wrote after the proclamation of Martial Law in Poland in 1981: “When the political power in a state has been confiscated by a bunch of gangsters which imposes its will on the nation, then state affirming attitudes mean regular participation in a crime. Resistance against such a state is natural, and civic disobedience€becomes the only socially respectable attitude.” To this one can add that one also observes the subordination of the state to organized crime is currently observed in contemporary Eastern Europe (Lynch 2005: 121). non-fictive, context-bound reflexive constitutionalism The second approach to constitutionalism is expressed in the previously mentioned slogan, “People, your Power has returned to you” (“and regardless of your vices,” one might add). This is supported by the arguments presented many years ago by the Czech dissidents, for instance, who subjected the technologically-oriented system rationality of communism to profound critique. Such ideas stand in sharp contrast to any counter-cultural strategies as reasons for new constitutions; they indicate the importance of the democratic context that the power has indeed returned to the “people.”

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The reflexive approach to constitutionalism is also based on a quite pragmatic observation that, to be non-fictive, the constitution needs to reflect extra-legal rules, ideas, and world-views of the society within which it functions. One should also not forget that all these are changing and adapting themselves to the changing circumstances. Therefore, according to this approach, a constitution correlates with specific social experiences which represent a relatively stable factor, and social expectations or even social passions which are changing along with the circumstances under which they are applied. A reflexive constitution is advocated by social scientists conscious of the fact that institutions, as social products, are governed by the identifiable principles of social and political organization which make sense of them and compose their “frames” (Goffman 1977).7 The sociological concept of “frames” seems particularly useful since it refers to social traditions, experiences, and social expectations which influence the formation, interpretation, and application of constitutional provisions. This concept is then used in its analytical, but also critical sense: it stresses the presence of hidden layers of meanings of constitutional concepts and principles. Concepts of “frames” or “contexts” do not forejudge positive effects in the creation of a liberal and democratic constitutional community – indeed they refer to the given cultural and political reality of a particular society. Considerations of “frames” and “contexts” in constitution-making, interpretation, and implementation do not presuppose the success of liberal democratic constitutionalism because they encompass democratic as well as authoritarian political traditions. This opens a possibility of creating a non-fictive and socially supported constitutionalism, only on the condition that the constitution framers and founding fathers use existing liberal traditions and the democratic elements of local cultures, invoke experience in the protection of human rights wherever this exists, and involve existing social capital. Moreover, the concept of “framing” does not mean that “frames” are granted once and for all or that a rigid “path-dependence” is 7 ╇I am referring here to the concept of “frame” or “frame analysis” as used by representatives of interactionist sociology circles. The former – borrowed by Ervin Goffman from Gregory Bateson – was defined as “principles of organization which govern events and our subjective involvements in them”; the latter is seen as “isolating some of the basic frameworks of understanding available in our society for making sense of events” and analyzing “the special vulnerabilities to which these frames of reference are subject (Goffman 1997: 155).



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Â� preordained. On the contrary, the concept of cultural “framing,” like the concept of context, presumes flexibility and change, though as a socially bound constitutional change: the more democratic and liberal, and the more the historic resources and actual civic expectations are reflected in constitution framing and constitutional adjudication, the more the constitutionalization of social change will be guided by the principles of communicative and axiological rationality informed by existing democratic and civic capital. Such an approach to constitutionalism means that the constitution of liberal democracy is far from being granted for all time and it is far from being clear and straightforward. The language of the constitution of liberal democracy is generic: it is open to interpretations which change along the continuum of time and space. Therefore, constitutional semantics, the meanings of constitutional provisions, are equally generic. The best evidence that there are several possible interpretations of the fundamental and, at first glance, straightforward principles of liberal constitutionalism lies in the very rule of law principle – a liberal constitutionalism barest conception. In contrast to its taken for granted, abstract and universal, and rather simplistic understandings is its specific, cultural and civilizational rooting, its origins within Western civilization, its further cultural variations, and, above all, its development within any given circumstances in response to the quite practical issues put forth by political practice. Thus, the most classic definition of the rule of law in common law countries, as formulated by Dicey, was never based on a written principle but evolved from practice. The currently existing constitutional rule of law principle is also based upon the practice of the liberal democracies of the Western world under conditions of the relative stability of democratic institutional arrangements and the predictability of decisions. On the other hand, that rule of law understood as the law-governed state (Rechtsstaat) which evolved from the projects of enlightened absolutism in the continental European tradition has shifted its meaning along with the shifting political arrangements with which it was combined and with the challenges with which it was faced (Stelmach 1992: 221–229). The new East Central European democracies inscribe themselves within Western civilization in which the notion of the rule of law – or, in their case, the law-governed state – has emerged and developed. However, they are confronted by legacies of long dictatorship and tasks that are risky and novel, going indeed beyond the law, or at least beyond the written law literally interpreted. Hence, they have to appeal

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to extralegal resources, to make use of extra-constitutional rules and values wherever these exist in order to support postcommunist constitutionalism formation, and to import sense and meaning to this process. To these particular challenges to the rule of law principle I will return in later sections of this book. So there are reasons underlying the social experience- or local knowledge-bound interpretations of constitutional provisions, reasons for an approach to postcommunist constitutionalism oriented at social and historical context. These refer to the profound and unique nature of the postcommunist transformation: its multidimensionality, the great challenges and risks that the transforming societies are facing, the influence of more distant political traditions, and the immediate communist legacies of public concerns as well as mundane, daily-life social experiences with totalitarianism. In contrast to the instrumental approach to constitutions, the political legitimization, moral justification, and cultural rooting of such an act are now emphasized as elements necessary in the reconstruction of a constitutional community after years of totalitarian rule and enforced, brutal and costly, but mostly failed modernization. A constitution and constitutional law now entail much more complex undertakings than clear-cut strategies evolving from the application of technically-advanced instruments and purely professional deliberations. They are conceptualized rather as the co-products of legal, political, economic, and accumulated social wisdom and knowledge under specific social and historical circumstances. They are not directed against a society, but formed with the help of existing social resources and existing social capital in a constant process of negotiations of meanings and values. In order not to be fictive or too expensive, their implementation has to be supported by and often conducted with the help of society – for instance, with the help of civic organizations of owners struggling for the restitution of nationalized or confiscated property, of journalists struggling for freedom of the press, of crime victims struggling for the rule of law, and many other NGOs which exist in any modern society and are especially important in the reconstruction of the postcommunist public sphere. This evidently suggests an approach to constitutionalism that is much more participatory than the one imposed from above, and much more reflexive than efficient in a technical sense. The idea of a reflexive, context-bound oriented constitutionalism is rooted in liberal tradition but one in which the social contract is not



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envisioned as imposed by some enlightened rulers – or, as it were, introduced from outside. Instead, this tradition is formed with the help of a constant and broad social debate on issues of particular political and moral gravity in which individuals and social organizations participate, and with the help of citizens acting because they take the constitutional guarantees seriously. The best example of such a constitutionalism in the broadest sense is provided by the already mentioned Gdańsk Agreement concluded in Poland in 1980. It also has a long ancestry in the East Central European political thinking: we were reminded again that the quoted slogan “People, your power has returned to you” comes from the 17th century Czech thinker Comenius (Priban 1999: ibidem). Therefore, socially valid and justified constitution making and application, and especially the interpretation of constitutional provisions, are never context-less, never context neutral. They have their own history and exist within social traditions and experiences which influence the meaning of constitutional principles such as, for instance, “human dignity protection,” “equal protection,” “social market economy,” or “social rights.” Such an approach to a constitution and constitutionalism finds support among those constitutional lawyers who argue that a constitution and constitutional law bear moral, social, and cultural aspects which help form a constitutional community based on shared meanings of constitutional principles. These are especially visible in decisions concerning the so-called “hard” cases that provide the process of constitutionalism formation with moral incentives and which force the taking of a standpoint in interpreting and applying abstract constitutional provisions to real-life, conflict-ridden situations. The latter, according to Ronald Dworkin, bring a political morality into the heart of constitutional law (Dworkin 1996: Introduction), and help the morally devastated postcommunist society to integrate and form a new social contract. In this light, it would be worth turning to preexisting social resources and also to take account of external pressures as the contexts in which the new constitutions are proclaimed, applied, interpreted, and eventually utilized by citizens. All this initiates a moral discourse – be it abortion or equal treatment or, with respect to postcommunist “hard” cases, lustration and decommunization, punishment for state or court crimes committed under the previous regime, compensation for wrongs, restitution of nationalized property, and/or participation in the privatization of state property.

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This approach is strongly supported by social philosophers who advocate procedural and a communicative rationality-based approach to a constitution, and constitutional law (Habermas 1993). It is also noted that such concepts and principles as the rule of law, human dignity protection, the division of powers, human rights, and definitions of citizenship are far from clear cut, and are not even clearly defined by the law itself, especially during a profound transformation. They have great symbolic value and, as such, they respond to gaps or inadequacies in the law since it itself “…operates through the creation of inventively suggestive ambiguities which defy closure of cognitive meaning or value relevance and seem by their nature open to an indefinite range of levels of interpretation” (Cotterell 1996: 132, 133). One of the important analytical concepts for the investigation of postcommunist constitutionalism lies in the concepts of constitutional rhetoric. According to an anthropologically-oriented philosophy of law, the very notion of a constitution, of the rule of law itself, and of the basic legal concepts of crime, punishment, human rights, and human dignity function as legal rhetoric. They link legal meanings with those ascribed to them by their addressees. They also appeal to the resources present in a given culture. Simultaneously, however, they perform a creative function by comprising a legal, i.e., constitutional community united by common understanding and common values (Boyd White 1985: 30). In light of such propositions, to investigate the formation of a socially-binding and reflexive constitutional order means delving into the hidden meanings of concepts used in constitutional and political debates. The accent is placed on the performative function of the language and the mutually binding force of the expressions used in the constitution as well as in the judgments of constitutional courts. The last mentioned factor lends more precise meaning to the language of a constitution: these courts contribute to the formation of a common understanding of constitutional principles, and therefore to the formation of a constitutional community. A question emerges as to the success of this process – on the compatibility of the official rhetoric of the constitution framers, of the constitutional adjudication, and of politicians responsible for the functioning of constitutional order as well as the public rhetoric in the broadest sense, i.e., the public debate. Therefore, the constitutional rhetoric of a working constitution is closely related to constitutional semantics in the pragmatic sense. This refers to the deeper and justifiable meanings



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of constitutional provisions – to social values and expectations, but also to their doctrinal and theoretical validation be it the doctrine of natural law, theories of justice, and/or theories of society or social change. Thus, in contrast to the “empty space” proposition that justifies pure constitutional instrumentalism, the reflexive approach to new constitutions is based on an argument borrowed from institutional theory. In light of it, the new constitutions are proclaimed and interpreted within the given historical and social frames, dominant convictions, and values and ideas related to a constitution and law. These convictions, values, and ideas represent important frames of reference for constitutional rhetoric and constitutional semantics. They function as an important intervening variable in the formation of a constitutional community. The constitutional community is seen here as composed of, first, the framers of the constitution and, secondly, the constitutional justices who endow its concepts and provisions with more precise and legally binding meaning. The third component of a constitutional community is the society which – in the form of claims or complaints, or actio popularis directed to national constitutional courts and tribunals, or petitions and complaints directed to supra-national institutions such as the European Court of Human Rights or the UN Commission on Human Rights, for instance – contributes to such an interpretation of constitutional provisions that is not only legally but also socially relevant. One should stress the activity of the civil society in its narrow sense as the activity of associations concerned with human rights protection, organized around quite particular issues such as restitution or reparations claims, associations of former prisoners, of victims, of lost persons’ families, of local businesses struggling for equal protection, accompanied by lobbies, labor unions, and social movements, and hundreds of other civic organizations ever more visible on the public scene which begin to take an active part in the development of postcommunist constitutionalism. To that sphere of civic activity also belong social actions, i.e., those which, at the very beginning of the postcommunist transformation, kept communist police files from being destroyed.8 8 ╇As a researcher of the post-GDR “dealing with the past” recalls, during the revolutionary Fall of 1989 a “group of angry East German citizens prevented the destruction of the Stasi (secret police) files” (Markovitz 2001: 516; see also Mitter and Wolle 1999:€9). We are reminded, too, that the idea to return control over secret police records

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Consequently, the non-fictive, and “non-paper” constitution is defined here as a context-bound, reflexive, and responsive document. It mirrors the key and typical features and concerns of the society within which it functions. It is able to absorb the ambiguities and the lack of clarity, certainly characteristic of the postcommunist societies undergoing a fundamental and risky transformation not against, but with the help of the already existing cultural and political resources which lie in the social and cultural capital of East Central European civil society. This approach to constitutionalism has proved successful in societies leaving their totalitarian experience behind them. Here I have in mind, above all, German constitutionalism with its emphasis on the role of constitutional adjudication, the introduction of constitutional complaint, the great importance of human rights expressed in the opening articles of that state’s constitution, its flexibility and reflexivity bound nonetheless by the higher law and protection of human dignity expressed as the very first provision. Still, one has to emphasize a crucial difference in the origins of the post-World War II German vis-à-vis the contemporary post-Stalinist, East Central European constitutionalism: the constitutions of the latter are the product of internal civic struggles for democracy and freedom and not of a lost war. the constitution as a theory of society within society “Law and constitution, written into law, cannot replace the cement of society, but they are important additives,” writes a prominent Eastern European constitutionalist (Sajo 1999: 10). However, such additives are not to be taken for granted and their ingredients should be debated with regard to the society in which they are to be applied. Because of the mixing of many ingredients, as well as older and newer tasks and challenges, postcommunist constitutionalism still presents an unfinished project. It is haunted by legacies of the past, fears brought about by the overwhelming and novel transformation, and the growing

to those who had been spied upon was taken up by the GDR’s only and short-lived democratic parliament and reaffirmed later in the East-West German Unification Treaty (Markovitz 2001). Similar events occurred in Poland when citizens spontaneously inhibited the destruction of documents of the secret police and the communist party.



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uncertainty of the modern world: an uncertainty with regard to the political power and sovereignty on which the new legal and constitutional system could rely and self-reflect (Luhmann 1994: 100ff; Luhmann 1997: 590ff). On the other hand, a non-fictive constitutionalism comprises an important component of the process of postcommunist societal transformation, in the reflexive organization of all components of social change. Theoreticians of social systems maintain that a constitution is indispensable in effectively dealing with the internal complexity of the politically organized nation and the increasing complexity of its external environment. According to the most prominent of these theorists, a constitution is indispensable in the ability of a politically organized modern society to overcome the contingency of interactions with its environment and the contingency of its own operation. Doubts regarding the identity of the people are dispelled because their constitution provides the modern society with semantic steering. In other words, this legal document provides the political system with concepts and meanings which function in the form of lenses – or cognition schemes – by which the political system is able to observe itself, define itself, and reflect on itself; to label its own internal processes, differentiate itself from its environment, as well as decide what its aims and objectives are, and therefore choose options for its further development. Again, as Niklas Luhmann argues, modern political systems function as selfreferential complex systems that cannot fully grasp their own complexity. Therefore they “…require possibilities of self-observation and self-description, i.e., an “identity” of their own, to guide their own operations.” What follows is”… semantic steering of self-observation of the particular kind of social system: the political system” (Luhmann 1981; Polish transl. 1990: 120, 121). This occurs thanks to the language and concepts by which political systems describe and differentiate themselves from their environments and from their past and thus legitimize their own existence and guide their further development. Therefore, modern political systems need a theory of themselves which would provide them with a semantic steering to deal with their internal processes and external challenges. Once upon a time, such a semantics was provided by religion or the religionbased political philosophy which defined the nature of mundane institutions, the place of the individual and of a community in this world, as well as the aims of our worldly arrangements, not to mention our ultimate goals. In the contemporary world, such a theory of political order

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and semantic steering for the political system is provided by the constitution. That is the reason for the growing popularity of constitutions, and the description of constitutionalism as a modern religion. It provides the language and concepts by which the newly-emerging political nation defines itself, differentiates itself from its past and its environment, and thus legitimizes its own existence. Semantic steering enables the modern political system to choose options for further development€from the plethora of possibilities offered by the complex, modern world – even if at first glance, at “the end of history,” this world seems to serve but one option: an undifferentiated, simplistically understood liberal democracy. Semantic steering is based on the concept of difference as the initial one used in the process of constitutional community self-observation, a first step in the formation of liberal constitutionalism and in the shaping of new identities with more specific self-observation and selfdescription. It helps the society to form its new identity as a politically organized community, to strike a new social contract on which its constitution is to be founded, and to solve crucial dilemmas inherited from the communist past and incurred by the deep internal transformation and present integration with the external world, i.e., integration with the European Union above all. The concept of difference as a means of identity creation has a long genealogy in philosophy and is a crucial theoretical concept in contemporary sociology. Founded in the relational logic of Immanuel Kant, in sociology it was fully elaborated by Pierre Bourdieu and by the already quoted Niklas Luhmann. In Bourdieu’s view, the concept of difference is closely related to that of habitus as a set of perceptual (cognitive) schemes through which an individual sees and interprets reality (Bourdieu 1990: 58, see also Bourdieu 1996). Consequently, situated in a social space, an individual shapes his own identity in relation to other actors and other social spaces by means of difference. In the theory of Niklas Luhmann, the difference presents a first step – the first operation of a system in its environment by which it tries to reflect on itself and build a theory of itself by means of further processes of differentiation initiated by the first one perceived by the system (Luhmann 1984: 43). In constitutions, this difference means an initial opposition to or contrast with something that the newly created system is not. For instance, it implies the definition of an individual by reference to inalienable human dignity as opposed to the concept of an individual as a member of a social class; it defines the social, political, and economic



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order by their differentiation from the past and from their environment, and it provides crucial ideas about the goals and aims worth attaining. In other words, the difference becomes the founding idea of the constitution – a starting point for subsequent elaboration of concepts and principles which altogether compose a theory of society about itself or a theory of society within society. This difference has both a diachronic and synchronic aspect: it relates to differentiation from the past and from the current environment, a differentiation with respect to time – primarily the past – and space. The first step in the process of historical differentiation comprises an answer to the question what the new system is not, in order to – in the following steps, configurations, and challenges – form answers about what the new system actually is. With regard to societies trying to build a liberal democracy, it is that initial cognitive operation which consists in differentiation of the new, liberal-democratic order from undemocratic ones: authoritarian, dictatorial, and totalitarian. This enables the steering of internal operations but, above all, it facilitates communicative consolidation and formation of a constitutional community in a new democracy. Diachronic differentiation represents a key component in the process of the theoretical self-representation and self-conceptualization of the new democracies. It leads to the formation of a new political identity for the society – to its new self-definition. Therefore, dealing with the undemocratic past is a genuinely constitutional process (to be debated in Chapter Four of this book). With respect to postcommunist societies, differentiation from the undemocratic past is even more important because – as members of the European Union – they exist in an environment to which they would rather adapt than from which they would differentiate themselves, at least not with respect to the most important components of European liberal democracies. For the conceptualization of this initial difference from the past, the phenomenon of rupture is of crucial importance; the rupture, the radical breaking away from the past consists, among other things, of a declaration of some elements of the past as illegal and delegitimized in contrast with the legal and legitimized present order (Arjomand 2003: 23). Thus understood, the “rupture” often overlaps with the “constitutional moment” – that particular moment in the life of a politically organized society in which heated debates about new principles of political organization and foundations of a new identity start. “Ruptures” and “breakdowns” characterize great modern revolutions.

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The symbolic representation of rupture was the introduction of a new calendar after the French Revolution, starting with a symbolic “zero point” in the history of the modern French nation. As emphasized by Zenon Bankowski, the rupture or breakdown of a political system brings about a paradigm shift entailing further rearrangement of the conceptual schemes of the society. This involves “. . . changes not only in empirical beliefs but in the language in which this world is described, in goals of inquiry, in epistemic values, and in the standards of rational thought and intelligible explanation” (Bankowski 1991: xii). Rupture also leads to a rhetorical change, expressed in slogans, analogies, and metaphors which is also important for the new constitutions as a theory of society within society. Another important component of a constitution – apart from the above mentioned concepts and principles by which the society defines itself as a democracy, as a nation, as a member of an international community – are axiological expectations about the common goals worth achieving. As a matter of fact, this is a common feature of constitutional provisions since very seldom, and only exceptionally, do they have a purely technical nature. Therefore, nearly all constitutional provisions – specific statements, as they were was also called – reflect aspirations and values linked by society with itself, with selected basic institutional arrangements, and with a path for further development. Therefore, the constitution as a theory of society within society is normative: a set of concepts which influence the schemes of cognition, and are based on normative convictions and expectations. Because these concepts are not only of a value-laden, but also open-ended nature, they help the society to cope with contingencies, ambivalences and uncertainties of the modern word – above all with the challenges brought about by a profound change. They contribute to the synchronic differentiation of postcommunist society in the modern world. These open-ended and value-laden constitutional concepts and principles are used in public communication, and thus shape the functioning of the public sphere in liberal democracy as well as the schemes of cognition of its participants. There is another component of liberal democratic constituÂ� tionalisms€ key to the current constitutions. This is the pre-existing socio-cultural capital used in the process of constitution-making, interpretation of constitutional provisions, and implementation of the constiÂ�tution. By socio-cultural capital I mean the democratic and



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liberal traditions already on hand and the actual expectations of the civil society. Consisting of open-ended but also value-laden provisions which reflect important values, convictions, and expectations, a constitution enables the society to cope with the growing number of options with regard to type of democracy, of market economy, or of international integration; and to consolidate and simultaneously reflect upon the new identities of political nations and citizens with “their heads held high.” This supports a process of reflection and consolidation around concepts powerful enough to overcome past legacies and current challenges – to name just the most crucial goals the new democracies have to attain. constitutional instrumentalism versus the reflexive approach to the constitution The two important approaches to postcommunist constitutionalism are not necessarily mutually exclusive; they are, however, based on different priorities. The first, the “constitutional instrumentalism,” refers to an instrumental theory of social change – even to some forms of sociological functionalism – and rests on the indisputable observation that there are such elements of local cultures that could threaten the formation of liberal constitutionalism and a liberal polity. It is also based on an assumption of clear-cut goals to be achieved in the form of indisputable concepts of liberal democracy, the market economy, or of freedom rights as a set of “givens” already proven elsewhere. In light of such an approach, the constitution is an instrument for constructing a good government, i.e., an efficient government subordinated to law. In the case of postcommunist transformation, its efficiency is to be evaluated by its results: effective introduction of a free economy, protection of economic freedoms and property rights, introduction and consolidation of democracy, and installment of the rule of law. Problematic is the sequence of the consciously implemented changes, expressed in “economy first” or “democracy first,” or “strong state first” slogans since the very simultaneity of changes would have mutually dysfunctional consequences and eventually impede transformation. However, in the case of ECE, the simultaneous introduction of democracy, a market economy, and the rule of law proved to be difficult but not completely€unsuccessful. Moreover, one can argue that democratic

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control and, above all, the involvement and consideration of civil society was crucial here. Disputable is the analytical framework provided by the theory of rational choice and, more generally, by neo-institutional economics as the foundation of the postcommunist constitution as a theory of society within society. In light of such an approach to a constitution, the ultimate choices inherent in its provisions are presumably calculable and measurable and the underlying theory is limited to pragmatic, indeed utility-concerned calculations. This is a strategy based on clear and calculable criteria. However, if applied to real modern and complex societies, and not to “empty spaces,” this strategy arouses serious doubts. These concern the estimated costs of implementing constitutional provisions and the purely instrumental rationality upon which such estimations are based. As sociologists know too well, in addition to the instrumental, the communicative rationality of human actions and institutions are also important: their historical and cultural embeddings – reflected in the concept of axiological rationality – and their rhetorical aspects, their constitutional community founding potential to which the concept of communicative rationality refers. Both, the axiological and communicative rationality, in contrast to the concept of a purely instrumental rationality, also imply a moral importance of constitutional provisions and of choices based upon them, e.g., choices made by justices of constitutional courts and in actions undertaken by citizens. This is followed by other doubts. These pertain to the justification, and consequently, legitimization of constitutions which are founded exclusively – a quite abstract proposition, one has to state, since no such constitutions exist anywhere – on the already mentioned, utilityregarding premises that result from purely rational legal deliberations and economic calculations. The doubts refer especially to the legitimization and justification of the new postcommunist constitutions. Debating such broader issues and aspects of post-dictatorial constitutionalism one has to pose the question as to whether the only higher reasons on which the new constitutions are based could be rational choices – whether the new constitutions could afford to be ultimately€ founded only on cost-benefit calculations and on technically conceptualized legal arguments. One wonders whether such reasons are sufficient for post-totalitarian reconstruction and consolidation of democracy, and whether they justify the indeed painful process of many reforms. And most importantly, one asks whether solely



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Â� utilitarian reasons suffice in forming the new social contract crucial for a peaceful and relatively inexpensive – when compared with imposed per force – process of reforms. One wonders about the charismatic qualities of utilitarian legal and cost-efficient reasoning and its appeal to social resources: psychological, ideological, cultural, and moral. In Eastern Europe such an approach to constitutionalism also awakens quite peculiar suspicions: it is based upon similar premises as those upon which the communist systems were based, i.e., pragmatic and economic arguments allegedly supported by a social theory. One may also plausibly ask what kind of democracy could rely exclusively on calculations. However, it would not be wise to reject costbenefit reasoning and rational choice theories entirely. Models based upon such analyses comprise useful instruments for an evaluation of the direct costs of undertaken decisions or implemented institutions, even if they are used only as auxiliary models and supplements to analyses of constitutional rhetoric and semantics of constitutional provisions, of the new constitutional legitimacy, of their potential to enhance such social resources or capital that would help transform a postcommunist society into a liberal democracy. The idea of reflexive constitutionalism proposed in this book stemmed not from Montesquieu, as one might expect, but from architecture – from the contemporary architects’ protests against modernism, against building rational constructions notwithstanding their physical and cultural environment and notwithstanding other buildings: the historical environment of new construction.9 It also arose from a trivial observation that there is no “empty space” in a society and from a conviction that cost-benefits calculations alone cannot produce results which determine the future of half the European continent. This is the thinking behind the proposed alternative approach to constitutions and postcommunist constitutionalism as frameworks for the mobilization and protection of those social and cultural resources which lead to the protection of human dignity and human rights, 9 ╇It is also claimed that the first constitutions are of a “transitory” nature and will be replaced by new ones of more stabilized liberal democracies in the region. However, as I am arguing in this book, the “transitory” feature of East Central European constitutions poses a fairly stable constant since all of the states in the region face another crucial change: unification with the European Union. Nevertheless, the current constitutions contribute to the formation of new institutions, constitutional communities, new relationships, and new social contracts as well as new social divisions. In this way they create a reality important for constitutional continuity.

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enhancement of civic organizations, and the moral reconstruction of devastated societies. Such an approach is rooted in a conviction that liberalism cannot be reduced to utilitarian calculations and abstract legal concepts but consists, primarily and most importantly, of freedoms and liberties, as interpreted in real life societies on the basis of their experiences and their histories, clearly and directly expressed in their constitutions as their own theories.

Chapter Two

Stalinist Constitutionalism An example of a theoretically-based constitutionalism as a theory of society within society is Stalinist constitutionalism. It provided the communist system with concepts and meanings and schemes of cognition which should help it in grasping the complexity of the modern world, defining its identity, and differentiating itself from the past and from its surrounding environment. It found adherents among the proponents of a modernization and rationalization of the social and political system. It referred to a profound difference between the socalled “peoples” vs. liberal democracies. Independent of that, Stalinist constitutions coexisted with a specific social contract in a congruent relationship of a sort that led to the formation of a “negative” constitutional consensus. On the other hand, the legacy of Stalinist constitutionalism has contributed to the axiological, cognitive, and semantic chaos which still challenges postcommunist societies and results in serious dilemmas. These challenges and dilemmas are perhaps even greater than initially suspected, if one considers the fact that communist totalitarianism was overwhelming: it combined total, bureaucratic control of all spheres of social life with brutally imposed modernization, and a sui generis cultural, political, and economic colonization. This feature of communism was once conceptualized as control of an impersonal€“system” over society, penetrating all spheres of life and making of people – especially of system functionaries – “marionettes, or puppets of the ritual” (Havel 1985: 32). In communist constitutions, not only did the dominant ideology serve as a final justification for the entire political and economic order, and not only was it considered the ultimate “scientific” truth about social development, but friendship with the Soviet Union was also declared as a constitutional provision. Thus, oppression did not consist exclusively of deprivation of political freedoms and liberties and in persecution of political opponents – the usual target of a dictatorial regime. We were dealing with a system which additionally divested citizens, associations, and municipalities€ of€ all their economic freedoms, not to mention their property. It Â�dispossessed states of their national sovereignty.

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Seriously limiting cultural rights – i.e., rights to confession, language, and other attributes of national, religious, and ethnic identities – it imposed upon societies an ideological vision of social development as a sort of “state religion,” and of law as an instrument of “scientifically proven” progress. Its target was social structure and human consciousness. Hence, also collective memories, history, and tradition were subjected to massive manipulations, in the domain of the public sphere and private life-worlds as well. Subject to manipulation were the ways of life of all citizens in an enormous effort to create a society of a new type: classless and undifferentiated, wholly subordinated to ideological€ principles of progress declared from above as “objective truths.” Its most ambitious goal was to create a “Soviet man”: a member of a homogenous, mass society without religious, ethnic, or even familial bonds (Sinjavskij 1991), economically wholly dependent on the state, and deprived of any practical responsibilities for the public well-being. To that end, the legal prescriptions were useful. It was observed that, “Under socialism, legal regulation was one of the main methods of directing social behavior.” This was the primary form of political leadership of the nation; all legal institutions as well as the law as a whole were instruments acting as the general social regulator of relations and processes in society. This was “an indispensable tool of social guidance” (Glasyrin, Kudriavzev, Nikitinsky and Samoschtschenko 1982: 13, as cited in Gessner, Holland and Varga 1996: 190). Outside this sphere of instrumental legal regulation, especially in the public sphere, a normative vacuum emerged. The system was legitimized by Marx’s theory of social development, providing it with important semantics. It claimed that scientifically corroborated and unquestionable laws of historical development supported it. Its mandate lay in an ideology of social progress decisive in its strong appeal to intellectuals and the masses. It resulted in the formation of a hypocritical constitutionalism and a quite peculiar, unwritten contract between the political authorities and society, here called a negative constitutional consensus. That consensus contributed to the inertia of the so-called “real socialism” which ensued after the opening phase of terror in the “proletariat dictatorship.” typical features of stalinist constitutionalism The notion of a “Soviet type” or “Stalinist” constitutionalism originates€in the constitution adopted by Stalin in 1936 in the Soviet Union;



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afterward this was used as a model for similar acts in all other “people’s democracies.” In Poland, the Constitutional Assembly proclaimed a new constitution on 22 July 1952 with total disregard for older constitutional traditions in that country – especially with disregard for the democratic constitution of 1921 – not to mention Polish socialist traditions and political doctrines.1 A draft of this constitution, elaborated in the Constitutional Commission of the party’s Central Committee (in Poland, the Central Committee of the Polish United Workers Party), was translated into Russian and sent to Stalin who personally reviewed it and made amendments. After those amendments, the Polish Sejm unanimously accepted the constitution (Kurczewski 2003: 179). The Polish Constitution of 1952 was next amended in 1976 in order to actually align it more with the Soviet model, despite newly introduced provisions aimed at modernizing and decentralizing the government in Poland (Burda 1990: 360–376; Stembrowicz 1990: 412–418). Those amendments consisted, among other things, in the final legalization of the leading role of the communist party, and a proclamation of friendship with the USSR expressed in the constitutional preamble. In Czechoslovakia, a Stalinist constitution was proclaimed in 1948. That event also brought a complete break with earlier democratic traditions which had developed in model fashion during the interwar period, and which enjoyed an even more distant lineage. The next constitution, proclaimed in 1960, moved the Czechoslovak constitutional and political order even closer to the Soviet model and Czechoslovakia proclaimed itself to be a “socialist republic” (Hendrych 1999: 23, 24). In Hungary, a draft for a socialist constitution – the first written constitution in that country’s modern history – was prepared by a commission that not only thoroughly studied the Soviet Union constitution of 1936, but also visited Moscow in order to draw inspiration there and literally translate Soviet provisions (Paczolay 1999: 114, 115). Similar events took place in other East Central European countries: the first proclaimed constitutions were modeled on the Soviet ones of the 1940s and early 1950s, as well as the amendments of the 1960s and 1970s. Although proclaiming decentralization (as in Poland), they also represented a final step in communist consolidation. Soviet-style constitutionalism was thus an attempt at uniformity among all communist€states. 1 ╇ The fact that the Polish constitution was actually reviewed and amended in Moscow before its proclamation was only made public as late as in 2004 when the respective archival documents were published.

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Its content consisted of provisions guaranteeing the leading role of the communist party (or “workers” or “people’s” party), the unquestionable socialist nature of the country, and, in the above mentioned proclamations of friendship with the Soviet Union, recognition of that state as the center of the empire. In their preambles or opening provisions constitutions here spoke of the class struggle, elimination of the bourgeoisie, nationalization of private property, and even legalization of terror and the establishment of a police state in the name of the state and its law. In Poland the constitution of 1952 declared Marxist-Leninist principles of socialism, the ruling role of workers, the workers-peasants alliance, and the limitation – until their entire elimination – of exploitative classes (Art. 3, point 4, with reference to the Preamble of this Constitution). The 1952 Constitution included such revolutionary expressions as “the fight with the desperate resistance of the wrecks of the old capitalist-landowners system” or “the overthrow of the power of capitalists and landowners” as goals of the government. Governmental power itself was to be based on conscious collaboration with the “working people,” and the state was declared a “fundamental instrument of the national economy” (Stembrowicz 1990: 378). There were also enshrined declarations never meant to be implemented such as declarations of judiciary independence and guarantees of freedom rights. The latter were expressed as follows: “The Polish People’s Republic consolidates and increases the achievements of working people, strengthens, and broadens civic rights and freedoms” (Art. 57, and after amendments in 1976, Art. 67) (Stembrowicz 1990: 377–418). Finally, these constitutions also guaranteed a broad range of social rights. The latter were mostly understood as granted by the state, linked to some collective criteria, and not as individual entitlements to social protection, citizenship or human personhood as in the European welfare states. Special privileges were guaranteed to the most useful members of socialist society: miners, ironmasters, veterans of the battle to install the “people’s government,” and artists deserving privileges. The Stalinist constitutions did not have binding force in the legal sense; they were not juridical constitutions and did not function as the basis of court decisions. However, in the late 1970s, when the ideology of human rights became an important factor in international cooperation in which even the communist governments began to be involved, these constitutions were used by democratic dissidents.



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Aside from constitutional unanimity, the politics of all the newly conquered countries should be unanimous. To that aim, one is reminded, political instruments were used in a process aptly called communization (Pogany 1997: 4). Delegates from the nine national communist parties – from the Soviet Union, Poland, Czechoslovakia, Hungary, Yugoslavia, Romania, Bulgaria, France and Italy – attended the first meeting of the Cominform in September 1947 and endorsed a call orchestrated by the USSR for the uniformity of both methods and aims in achieving socialism (Pogany 1997: 22). With the prominent exception of Yugoslavia, and the evident ones of France and Italy, that policy of unanimity continued until 1989. As a result of these politics, hundreds of more nationalistically-oriented communists (including the most prominent leaders) were executed in the first wave of totalitarian terror in the late 1940s and early 1950s. Any deviance from that politics was “corrected” by brutal Soviet intervention in all cases in which particular countries tried to choose a “national path” to socialism or establish “socialism with a human face”: in East Germany in 1953, in Hungary in 1956 (at that time Poland was spared although the Soviet army marched into the country), in Czechoslovakia in 1968, and in the form of Martial Law in Poland in 1981. Criticism of Stalinist constitutionalism is obvious. Communist states actually rejected all basic institutions of parliamentary democracy and the market economy. In accordance with the Soviet model, they introduced central planning and reduced economic freedoms and liberties to nothing. On the other hand, however, the most fundamental liberal freedoms, apart from the economic, were declared to a great degree in those constitutions, but were never intended for implementation, or were interpreted in novel fashion. Such an interpretation was inscribed in the Czechoslovak constitution of 1960: Article 28(1) of that Constitution declared that, “Freedom of expression in all fields of public life, in particular freedom of speech and of the press, consistent with the interests of the working people, should be guaranteed to all citizens.” With respect to the protection of rights, those constitutions were – as exemplified by opinions on the Czechoslovak constitution cited in an example representing all of them – entirely hypocritical (Hendrych 1999: 21). Stalinist constitutions presented an important component of a specific ontology – that of an assumed reality. This was characterized by a lack of autonomy in the economic sphere (because of the nationalization of the means of production) and in the political

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sphere (because politics was subordinated to a translation of the rules of social development by the working class avant-garde) (Staniszkis 1989: 9). Hypocritical constitutionalism was supplemented by a concept of law identified with an order issued by the political authority, backed by state force, and written down as legal text. On the other hand, the meaning of basic constitutional principles depended on their actual interpretation by the communist party apparatus, and the law was developed further not in the form of statutes, but rather as a complex set of governmental ordinances and prescriptions regulating every sphere of social life. Furthermore, these ordinances and prescriptions or “xerox laws” were often replaced by informal orders issued by communist party officials. As a consequence, the life of communist citizens was regulated, from the top to the bottom, in the form of thousands of bureaucratic prescriptions and thousands of informal orders. The basic principles on which the elaborated structure of these prescriptions rested – the constitution – were subject to their shifting political interpretation by top party functionaries. Hence the standpoints of the communist party first secretary, or the whole Politburo were quoted at the beginning of any important legal opinion or interpretation of constitutional provisions. As a matter of fact, they constituted the semantics of the whole political arrangement by which the communist systems defined themselves, and contributed to the constitutional hypocrisy – the imminent, structural discrepancy between constitutional provisions and principles, their interpretation by the highest political authorities, and the thousands of legal prescriptions of lower rank, as well as informal orders of communist party functionaries. Another important feature of Stalinist constitutionalism in ECE lay in its quite practical support and guaranty by the threat of Soviet military intervention. Such intervention was realized at least three times when countries tried to depart – albeit only partially – from Stalinist constitutionalism: in Eastern Germany in 1953, in Hungary in 1956, and in Czechoslovakia in 1968. The threat of Soviet military intervention hung quite real in the air in Poland in 1956 and 1980, and constituted the most important justification for Martial Law in 1981. theoretical foundations of the stalinist political system Apart from the terror and threat of military intervention, Stalinist constitutions were characterized by a quite distinct semantics expressed in



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specific provisions and principles. These were rooted in Marx’s theory of progress and Lenin technocratic visions of society and of the state as a huge, centrally-managed factory. Marxist theory contributed to their deep, semantic structure, and hence particular constitutional arrangements resulted from that very theory. First and foremost, it was the nationalization of the means of production: a precondition for deeper and inevitable social change. In this respect, Stalinist constitutions do not reveal a “perversely unintended power of Marxism” but are, according to my argument, clear incorporations of the most fundamental assumptions on which Marx’s theory was based (see also Clark, Wildavsky 1990, 1994: 48). As observed by a prominent Polish author in her book on the ontology of that system, its functioning, but most importantly, the domination of politics over economics was a systemic necessity, rooted in the nature of the means of production ownership (Staniszkis 1989: 5). This resulted in the sharp limitation, and even annulment of private property, and consequently elimination of classes of owners, as well as of the market itself. On the other hand, they followed Lenin’s project of a rationally managed society, and thus appealed to older, Saint-Simonian visions of industrialism. Hence, Stalinist constitutionalism was founded on the allegedly scientifically proven rules of social development and, at the same time, on the axiology of the Enlightenment: rational social planning, progress, and social justice applied to the working class. This semantics also legitimized Stalinist constitutionalism because it provided its own self-justification. According to Niklas Luhmann, this is the case because Marxism proposes itself “…as a unity of science and ideology, a particular kind of science. In line with this, it expresses its own theory as a condition of its legitimization” (Luhmann 1981, Polish transl. 1990: 18). Put more simply, Marxism provided the language and concepts via which the political systems of “real socialism” described and differentiated themselves from their “capitalist” or “imperialist” environments, in this way legitimizing their own existence. These concepts were enshrined in the constitutions, and, as stressed above, constantly repeated, interpreted, and implemented by the system functionaries. Thus, they became a part of reality as its formative factors, notwithstanding real social processes and phenomena. The theory also provided important ideas influencing the frames of minds of their ruling elites, and the language through which the system conceptualized itself. Among the most important was the principle guaranteeing the leading role of the proletariat and its avant-garde (a social representation of

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the system within the system, and the system’s charismatic centre) and the principles which defined the system’s primary goals. One of them was the previously mentioned destruction of the owner classes. Another was the establishment of “peoples’ democracies,” different from liberal democracies. A typical feature of the former was its democratic centralism which consisted of the subordination of all political forces to the communist party. The principle of democratic centralism – next to that of the priority of socialistic forms of ownership (described also as national ownership) – comprised crucial semantic instruments of the system’s self-definition. The next element in the self-definition was the principle of friendship with the Soviet Union: a symbolic expression of the limited political sovereignty and political subordination of “peoples’ democracies.” In Poland this principle was written into the constitution as late as 1976, along with the principle on the ruling role of the Polish United Workers’ Party (new Art. 3, Point 1) and the introduction of a constitutional provision on foreign policy. This last factor consisted of a strengthening of friendship with the Soviet Union and other socialist countries. In this way, the formation of Stalinist constitutionalism continued into the middle of the 1970s. The semantic foundation of Stalinist constitutionalism – apart from the existing principles of political and economic order – was also rooted in the principle of “socialistic legality” (or “people’s legality” ). This principle was introduced into Stalinist constitutionalism by the Soviet prosecutor general Andreij Vyshinskij precisely in the 1930s, at the time of the greatest terror in the Soviet Union, in order to construct an image of stability and legality of the oppressive party-state as yet another concept legitimizing the political terror and gross violation of human rights. Among other important concepts and ideas relevant for this Stalinist constitutionalism were those concerning the law and defining its crucial function as an instrument for the fundamental transformation€of society. The law – initially doomed to “wither away” – actually gained significant functions in establishing the power relations and administration of the centralized, planned economy, and as a most important means of a radical transformation and communist government legitimization. Initially however, the law was conceptualized as an instrument of administration and a mechanism of suppression because, as earlier emphasized, “During the transition from capitalism€to communism suppression is necessary” and “(a) special apparatus, a special machine of suppression, i.e., a ‘state’ is still necessary.”



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Moreover, “The judicial functionaries were to be divested of that sham independence and in this way promoting the ‘objective laws of history’” (Lenin 1964: 463). In the second phase of the Stalinist system’s development, the law provided the system with its semantic steering mechanism – “new-speak” – thanks to such concepts as “socialist legality,” “socialist product quality,” “socialist legal consciousness,” or the “political-moral unity of socialist societies.” These concepts presented discursive means by which the new political system could further differentiate itself from capitalism, without the necessity of bothering with empirical evidence of its truths. As idioms of activity for a “self-referential socialist system,” these concepts absolved both functionaries and citizens from responsibility for individual actions and their consequences. It sufficed to apply semantic rituals, to put people on trials and sentence them to death in accordance with the concept of socialist legality or, on the contrary, to proclaim “socialist product quality,” to change names and words, and not bother with legal acts of lower rank which would protect the constitution or a socialist quality. It would be enough to introduce the rituals of elections and create a symbolic reality compatible with the theoretical requirements. This idea of a “system” provided the intellectual and moral context for the social operation of the law as a “subsystem” within the socialist society system. In accordance with Marx’s thesis about the economic “base” and the legal “superstructure,” but in a much more subtle and profound way, the idea of an overwhelming “system” supplemented discourses about the law with arguments about its role in the social-system development. In the last period of hypocritical Stalinist constitutionalism development, the law was no longer reduced to a means of oppression which one social class uses to its own advantage as the first, naïve Marxists believed. It was not even perceived as a “grand scale instrument” of social change. Instead, it became conceptualized as a coherent system of techniques, including discursive ones, completely de-socialized and depersonalized, self-referential, and therefore beyond any moral judgment. In light of the most insightful comments on the Stalinist constitutionalism ideology, especially the hypocritical ideology of “socialist legality,” legality was transformed into contemporary interpretations of constitutional principles by the Politburo. Socialist legal rhetoric of lower rank prescriptions, on the other hand, represented a kind of a “… political bureaucratic nonsense comprehensible only to a bureaucrat

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legal expert” (Priban 2002: 161). The constitution itself took on the shape of a “camouflaging structure” in violence-based domination, direct or indirect. However, actual social processes clearly diverged from the theory, and it was no longer possible to disguise the uncomfortable facts contradicting the ideological-theoretical assumptions about the development of socialism, about the alleged “progress.” At this point, the law acquired the purely symbolic quality of a superstructure legitimized by a visionary theory, as a part of an unquestionable system-related discourse, to which conventional categories of truth and evidence did not apply. This is illustrated by the cited examples of systemic hypocrisy: the concepts of a socialist quality of goods or of socialist legality. In light of sociological theories that stress the power of discourses as crucial arenas of communist constitutionalism legitimization, the Stalinist constitutional semantics was important for the establishment of a radical difference between the communist and liberal societies. On the basis of such a semantic difference, i.e., on the basis of a Marxist unity of science, ideology, and social reality principle, the discourses imposed by a Stalinist constitutionalism were important in shaping new identities by means of a difference between a progressive constitutionalism reflecting presumably scientific laws of social development and interpreted by the political avant-garde – the communist party – and the reactionary constitutionalism of capitalist societies.2 Notwithstanding the fact that, more or less in the late 1950s, the functioning of the totalitarian state on the hitherto practiced scale became too expensive, the principles of the ruling role of the communist party as the avant-garde of the proletariat, the democratic centralism, and the priority of socialist forms of ownership remained

╇ Characteristic are the convictions – both in Nazi Germany as well as Stalinist Russia – that the total state must not know any difference between law and “ethics” (Arendt 1951: 626, 627). “Ethics” was understood either in terms of Carl Schmitt’s spirit of National Socialism (Schmitt 1934), i.e., as the “dominant world-view of the Volk,” or as the “people’s feelings on revolutionary justice” directly applied as in Soviet Russia immediately after the Bolshevik revolution, or else as the actual interpretation of such people’s feelings by the communist party in light of the “requirements of the objective legality of socialism” (Savickij 1993: 131). Accordingly, in the more elaborated definitions of socialist legality, the states were assumed to be expressing the interests and the will of the active population, with the working class seen as the primary “driving force” in light of the principles of Marxism-Leninism. Here, the “legality,” the “ethics” and the “scientific laws of historical development” represent an undifferentiated whole. 2



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incontestable. Stalinist constitutionalism reached a semantic stability which was shaken only occasionally during moments of social upheaval in 1956 and 1968 (or additionally in Poland in 1970, 1976, and 1980).3 After those upheavals there was some liberalization in the different domains, followed by a “normalization” which consisted of not questioning the Stalinist constitutional principles. Obviously, such a semantic stability may be explained by the massive presence of the Warsaw Pact army in ECE. Additionally, the geriatric features of “frozen totalitarianism” are stressed and the inability of revamping the leadership, especially in such countries as Czechoslovakia or the former German Democratic Republic (Linz and Stepan 1996: 47) not to mention the model Soviet Union. However, there also existed other factors of the system stabilization. Some of them were closely related to the system semantics; others correlated with the ideology of social progress and with the system axiology. Still other factors of the system stability result from an “unspoken agreement” between the authorities and societies leading to the “negative constitutional consensus.” The latter consisted of not questioning the semantics and principles of Stalinist constitutions, and even accommodating Stalinism in daily life. axiology of stalinist constitutionalism An important feature of Stalinist constitutionalism is its axiology. Founded on concepts of reason and progress as scientifically proven, it appealed to elites and masses and was elaborated within the concepts of modernization as rational management of industry and social justice linked to productive work. This axiology comprised a particular legacy of European EnlightenÂ� ment in its version closest to the natural sciences (as a model of reasoning) and to Saint-Simonian visions of the industrialized society. It justified – in the eyes of its proponents and adherents inside and outside Eastern Europe – all means aimed at radical social reform: the

╇One should here add that the 1970s represented a period of final attempts to meet the most important constitutional provision in the nationalization of the means of production and eradication of the “bourgeoisie.” In those years the still existing small entrepreneurs were exposed to even stronger pressures to nationalize their workshops or small companies. More on this issue will be found in Chapter Four of this volume. 3

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terror and violence, suppression of all opposition, and gross violations of human rights. This justification was rooted in the naturalistic and evolutionist vision of the social world which believes that there is a ratio inherent in general, objective laws which determines social structure and social change. The assumption of determinism was closely connected to the concept of causality, as a general principle determining occurrences of social phenomena. Consequently, the concept of rationality became primarily instrumental. It related to the ability of the human mind to discover the objective laws of social development and, with this knowledge, to realize social interests and fulfill social needs in the process of a growing reflexivity of progressive social forces. One of the consequences of seeing rationality as related to the deterministic and evolutionist model of progressive social development is the relativization of that concept. Rationality becomes understood not as the axiomatic property of every human being, but as the property and skill of those, who are able to recognize the objective laws of social development and make use of that knowledge. They do this first through augmentation of the hidden and creative social forces of society – the proletariat and its avant-garde – thus accelerating progress and modernization, and, secondly, through the use of means leading to the best fulfillment of the requirements of progress. Such a conception of rationality evokes the possibility of an authoritarian imposition on people of what their needs and interests should be and also the forceful imposition of particular views about rational, progressive society. If “rational” means not only enlightened or possessing knowledge, then it can be understood as a definite skill and competence in arranging human affairs according to “known” and allegedly objective rules of social organization and development. Indeed, in the age of industrialism, such an instrumental conception of rationality was unquestioned. According to the further assumptions and beliefs of the Enlightenment, history progresses in accordance with some definite plan and instrumental reason should fulfill its destination: the achievement of ever-higher levels of social development. What counts as a “higher level” is the provenance of those who possess the knowledge of the objective laws and a vision of the future, i.e., more rational stages of social development. In the name of such a vision, they are able to activate and control society – not only its economic or political activities, but also its values and beliefs. Cognitive abilities are not evenly distributed. Therefore the establishment of a rational social order means the promotion of those who



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understand the existing state of affairs and are best equipped to realize the – in any case – inevitable future. It means, in short, the institutionalization of uneven power relations and of the idea of a dictatorship of progressive social forces. The paradigmatic functions of the constitution therefore become its organizational, innovative, and educational functions. Interpreted by the most progressive and powerful forces of society, the goals of the constitution – the rationalization and progressive transformation of economics, politics, and social structure, and their subordination to the objective laws of history – are fulfilled. As the transformation of a society towards a better future is more easily accomplished when the society has no normative models, then the aim of the progressive constitution is also to cut it off from its own tradition, cultural roots, and religion. That feature of Stalinist constitutionalism was allegedly often welcomed in the West. As Zdzisław Krasnodębski argues, “…the particular indulgence of Western intelÂ� lectuals towards communism resulted from their universalistic and moralistic attitude rooted in an aversion to tradition, particularism, religion, national cultures, and involuntary obligations towards concrete communities. Communism was accepted and justified because it seemed to be an incorporation of this attitude so dear to intellectuals” (Krasnodębski 2003: 23, 24). This was true for at least some of them. In the opinion of Francois Lyotard, the legitimization of Stalinism – in contrast to national socialism – would be, in principle, a republican one. According to this author, Stalinism presented a version of the universal emancipatory narrative born of the French Declaration of Human Rights. Its internationalism clearly meant that no legitimization could be ascribed to local forces which, because of their particularity (singularity) are necessarily despotic. Therefore, the terrible regime of Stalinism could so long delude human minds because the sense of its performance consisted – as Lyotard believed – in implementation of the socialistic republic (Lyotard 1990, as cited in Krasnodębski 2003: 24). Thus, there was yet another meaning of progress, imminent in the axiology of Stalinist constitutionalism and appealing to intellectuals. This was not only the destruction of private ownership of the means of production, but also the fact that it was intrinsically anti-traditional, anti-local, and anti-religious. The annihilation of reactionary social forces and institutions comprised a necessary element of this axiology.€Such a fundamentally “progressive” component of Stalinism was

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Â� decisive in its long-lasting and unquestionable attraction for a number of the “Enlightened,” notwithstanding already known facts about its functioning. Hence Stalinist constitutionalism was very far indeed from the liberal conception of a constitution as an accumulated, collective social wisdom. The appeal of Stalinist constitutionalism to the masses resulted from the abundance of social rights written into its constitutions. Those rights, as already stressed, were defined as privileges granted by the state and not as inherent in every human being. They were connected to the work a given person fulfilled in the great machinery of the productive sector. Apart from that, they reflected the omnipotence of the state which took on responsibility for its citizens, organizing their private, professional, and public lives. Notwithstanding its hypocrisy, Stalinist constitutionalism won a specific legitimization. system legitimization: the unarticulated social contract and negative constitutional consensus In the mid-1950s, the terror and police state, on the scale they had attained, became too costly, but the system semantics itself – especially the political – remained undoubted. Stalinist constitutionalism had achieved stability. Moreover, another component of Stalinist constitutionalism appeared, important for system legitimization and self-Â� perpetuation – or even its petrification – and best visible in the later stages of the system’s functioning, i.e., in the late 1960s through the 1970s. One may ascribe political stability to the presence of the Soviet army with the constant possibility of its military intervention. Other authors have stressed the “geriatric tendencies” of a “frozen post-Â� totalitarianism” because of an inability to renovate the leadership, especially in such countries as the former Czechoslovakia or the former German Democratic Republic (Linz, Stepan 1996: 47). However, it has also been argued that there were other important social resources for system stabilization. In its later stages, the system came to be supported by implicit social contracts, best described by the famous motto: “We pretend to work and they pretend to pay us.” This slogan took on a more elaborate form in Czechoslovakia, known as the seven wonders of Czech Communism. As quoted in a book on negotiated revolutions, they were as follows:



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“Everybody has a job Although everybody has a job, nobody works, Although nobody works, the Plan is fulfilled up to 105 percent Although the Plan is fulfilled up to 105 percent, there is nothing in the shops Although there is nothing in the shops, we’ve got enough of everything Although we’ve got enough of everything, everybody steals Although everybody steals, nothing ever goes missing And the eighth wonder of the world is that it has lasted for 41 years” (Lawson 2005: 105).

To various degrees, an “organized mimicry” developed. This allowed for individuals to mind their own business without getting involved in public affairs, to retreat to the private sphere, and to superficially conform to public rituals such as those of falsified elections. Stability was possible due to a “paternalistic redistributive economy,” providing what could be called the “basic standards” of welfare – e.g., healthcare, education, and extra remuneration for labor in the form of access to scarce consumer goods (granted to a few, such as coal miners or communist party functionaries) – and “benefits” of the system – e.g., housing, recreation, and kindergartens (granted in principle to all). In the 1980s, stability also depended on negotiating basic provisions and greater “liberties” in private life in exchange for “basic loyalty” or, sometimes mere acquiescence. Since the 1980s, various forms of self-employment (present in Hungary since 1968) and secondary jobs emerged, with the state enterprise often providing necessary resources (e.g., tools, PCs, etc.) for achieving better performance in other activities. Of course, this was only possible due to a “slack” labor discipline and lagging labor productivity. There were also more profound reasons for the persistence of Stalinist constitutionalism. The Czechoslovak dissident, Milan Szimeczka described his country’s petrified stability as a kind of a contract between society and the ruling Communist Party according to which the population was provided with guarantees of material subsistence and, in exchange, was required not to question the communist ideology or interfere in power relations and political affairs (Szimeczka 1990 as cited in Priban 1999: 32). In a similar vein, Vaclav Havel observed that the system was built on foundations laid by the “historical encounter between dictatorship and the consumer society” (Havel 1985: 38). There was also “goulash communism” in Hungary, meaning a contract between the Hungarian society after the 1956 uprising and the communist authorities, represented by the Kadar regime installed by the Soviet occupants (Linz, Stepan 1996: 298, 299).

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The same system legitimization in an unspoken social contract (i.e., state-guaranteed and provided social rights such as health care, education, housing, and jobs in exchange for the society accepting the system’s basic principles unquestioningly) was executed in Poland (Rychard 1988: 35) and was called the “small stabilization.” Thus, everybody in any “real” socialist country was working at a state-owned enterprise and nobody was asked to work effectively; every person had the right – guaranteed by the state – to free education and medical care, paid vacations, extended maternity leave, and pensions as long as that person did not openly question the Marxist ideology and principles of Stalinist constitutionalism. In Poland, the system even tolerated great deviance but that only contributed to its resilience. Most important of these deviations from the model of Stalinist constitutionalism was Polish agriculture – roughly only 25 percent nationalized. The system tolerated and even protected the illegal activities of smugglers, people who worked abroad illegally and brought undocumented funds to Poland, or dealers on the illegal black market currency exchange. As it is also argued, the developing civil society, the activities of political dissidents, and the illegal but tolerated economic activities of the people contributed to system stability. In the opinion of a Polish author, civil society under communism comprised a safety valve (Ogrodziński 1991: 70). Thus, there existed a double congruency, between the Stalinist-type constitution and the unwritten social contract that determined the nature of communist constitutionalism in its broad, sociological sense. This consisted of a constitutional tautology with regard to the basic ideological principles of Stalinist constitutionalism, and the reality (far from these principles) of the real, existing socialist society – politically obedient, composed of passive subjects, or, as it were, self-organizing but not disturbing official structures. That doubly congruent interrelation resulted in a peculiar stability and the functional adaptability of the system. The constitution was not questioned and functionaries of the system could play their roles as “marionettes of the ritual” because, for their part, they did not question the petrified structures of social guarantees. On the other hand, the society did not question the ideological-theoretical foundations of the constitution – as a matter of fact it could be fairly oblivious to the constitution’s existence as long as social guarantees were provided. The system reached equilibrium€ and€ a functionalist semantics replaced the revolutionary one. Hence, quite strikingly, functionalism provided the new theoretical



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and methodological paradigm of late communism. After its initial rejection as a “bourgeois theory,” it then became fashionable to combine functionalism with Marxism, on the assumption of a “political moral unity” of the “developed socialistic societies,” determined in reality by the existing, non-articulated social contract, and negative constitutional consensus. In its latest phase, the socialist contract was supplemented by yet another one resulting from a double game played by communist states authorities with the central power, i.e., with the Soviet Union on the one hand, and with their own citizens on the other. That game was due to the collapse of the communist internationalism ideology and the formation (to various degrees in different countries) of the “national communist” rhetoric, far from the universalistic one of Marxism’s founding fathers and mothers. It was used by communist authorities in their communication with society in the form of popular appeals to national, and often quite nationalistic or chauvinist symbols, myths, and ideas. This strategy proved to be effective because, as has been stressed many times, for nations deprived of their independent statehood in the 19th century, the regaining of that status for a brief twenty years after 1918 and at least partial loss again after 1944 meant that national identity and, above all, national sovereignty bore great value.4 Thus, appeals to nationalism also contributed strongly to legitimization of the existing system.5 The collapse of the communist system was due to many factors. Its legitimization deteriorated considerably at the end of the 1970s,

4 ╇In his excellent book on the myths that consolidate East Central European societies, Vladimir Tishmeanu argues that the roots of the great appeal of these nationalist myths might lie in the deep humiliation that was part of the experience of these societies and their authorities after 1944 (Tishmeanu 1998: 19). As has been noted elsewhere, this humiliation was due to the fact that, once again in history, societies boasting a high civilizational, technical and cultural level, and deeply convinced that they are Europeans were pushed per force into at least semi-colonial relationships with a political center outside their borders – the Euro-Asiatic sphere of domination (Thompson 2000: 23 ff). 5 ╇To illustrate this point one could refer to a quite grotesque appeal to popular national sentiments and symbols upon the imposition of Martial Law in Poland. For instance, the communist authorities appealed to national (and even nationalistic) feelings and sentiments by introducing a new army uniform that mimicked that of the Polish army before 1939. Additionally, the first official broadcast by then Prime Minister General Jaruzelski was accompanied by the music of Frederic Chopin whose compositions continued to complement all presentations and proclamations of the military authorities thereafter.

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among other things due to worsening economic conditions and the ability of the state to provide the social guarantees – in other words, its inability to fulfill the non-articulated social contract. However, this was not true everywhere: Czechoslovakia, for instance, was characterized by sound financial conditions and broad social welfare protection.6 One of the reasons for the system’s ultimate collapse consisted of the increasing transparency of the system’s lies, as well as the capriciousness of the laws of social development on which it was allegedly based. This placed the system’s identity and self-referentiality in doubt. The civil society composed of dissident intellectuals was of crucial importance in exposing the lies. Here one should stress that it is not the number of dissenters that counts when the system’s lies are to be compromised. The role of civil society, even if it was composed of just over 100 intellectuals, consisted in denouncing the hypocritical Stalinist constitutionalism, the communist discourses and schemes of cognition, and the previously described conjoining of science – laws of historical development – with ideology. In this, members of civil society challenged the keystone on which Stalinist constitutionalism had built its own identity and legitimized itself as a scientifically proven, progressive constitutional arrangement. stalinist constitutionalism and the need for a new constitutional semantics As Leszek Kołakowski argues, Stalinism deviated only in some respects from the original ideas of Marx. According to this philosopher, the ╇Traditionally, one can differentiate between several definitions or dimensions of civil society. The first (rooted in the political philosophy of Aristotle and represented by such thinkers as John Locke) identified civil society with political society – with the politically organized community, political institutions, and political rights, active and passive. The Scottish thinkers (above all Adam Smith and his followers) identified civil society with economic society composed of free economic agents, its order with institutions developed because of free economic exchange and the rights to economic freedoms and liberties. The republican doctrine (first and foremost, the teachings of Kant and Hegel and their followers) stressed the ethical dimension of civil society, the civil Sittlichkeit, and the individual moral consciousness, stressing the concept of public good and ethical foundations of social life, such as, for instance, a decent human order, as its salient components. All three concepts are applied to the analysis of postcommunist transformation, with a special accent placed on the understanding of civil society as ethical society (Szacki 1994: 223; Linz, Stepan 1996: 255 ff). There is also a great stress on the links between the functioning civil society and the culture of the rule of law. Predominantly rooted in the Kantian social and political philosophy, it is 6



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totalitarian consequences of Marx’s thinking – revealed by praxis – were innate from birth (Kołakowski 2005: 123). They were legalized in the form of Stalinist constitutionalism for which Marx’s theory of society provided a theoretical foundation. Furthermore, Marxist theory importantly influenced the understanding of that constitutionalism’s most important provisions and also contributed to its rhetoric. The 1980s opened a debate on that theoretical foundation and its normative consequences – specifically querying the consequences of property nationalization, the Leninist vision of society and the state as a huge factory centrally managed, and finally the Stalinist police-state and the hypocrisy of “socialist legality.” However, even if criticized, this type of constitutionalism coexisted with a social consensus; it set down roots into the social fabric. The year 1989 exposed the necessity for a new theoretical means of self-representation and self-definition, and for a new theory of society within society with charisma and appeal strong enough to transform the unarticulated social contract into a new one, more compatible with the requirements of liberal-democratic constitutionalism. These efforts to find new ways of self-representation took on the form of some popular slogans such as the “rule of law,” “economy first” or “democracy first,” or “back to Europe” (to which I will return later in this book). New dilemmas and challenges manifested themselves as well. The most crucial of these concerns was a positive constitutional consensus under quite new circumstances in which the state intentionally relinquishes many of its prerogatives due to decentralization, the establishment of a free economy and, last but not least, European integration; at the same time, however, the state plays the role of the primary agent in an overwhelming transformation of economics, politics, and social structure. From the perspective of postcommunist constitutionalism, the establishment of a new contract is an extremely difficult issue considering the effects of the round table agreements as well as the fact that the socialist social contract was never questioned (with some, albeit inconsequential exceptions) before 1989. Until then, all efforts of the dissenting civil society were aimed at reforming the political system and not the economics. The early efforts were undertaken under the motto of “socialism with a human face” – visions of a

currently emphasized by those sociologists of law who critically analyze the formation of constitutionalism in the former communist societies (Krygier in Krygier 1994).

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socialist “welfare state,” a mythical “Sweden,” or “self-governing republic.” It was soon clear that this kind of socialism was impossible not only because of the wholly inefficient economy inherited from the former system, but also because of the necessity of systemic differentiation and separation of economics from politics. Hence demands appeared for a theory which could import a new identity to postcommunist democracies and justify liberal-democratic constitutionalism.

Chapter Three

In Search of a New Semantics: Discursive Resources of Postcommunist Constitutionalism The symbolic year of 1989 compromised Stalinist constitutionalism and also placed in doubt the unspoken social contract. It initiated processes of democratization and liberalization as well as new identity formation for the former communist societies. The next step in the transformation would be the unification of these societies with the European Union. Thus, after 1989, all elements of legitimacy for the communist constitution and all the components of its semantics lost validity. This encompassed the Marxist-Leninist theory of historical development, of the state, and of law; it also encompassed socialist rights to subsistence granted by the state as the foundation of a negative constitutional consensus, and, finally, due to EU accession, the appeals to nationalism typical of the final stage of the communist system’s functioning. Currently, the big question concerns the very conceptualization of difference and the semantic steering for the further selfobservation, self-description, and identity formation of postcommunist societies. Thus at stake is the semantics of the new postcommunist constitution on the one hand, and the formation of the constitutional community united by a shared understanding of constitutional principles on the other. Pondering these issues, one cannot avoid reflecting that postcommunist societies in East Central Europe find themselves in a difficult, even precarious position when compared to the formation of liberaldemocratic constitutionalism two centuries ago in Europe and the United States, or even sixty years ago in West Germany after the Second World War. At that time powerful constitutional semantics provided doctrines of natural law (either in the form of a metaphysical, empirical, or philosophical edifice) as a deep justification for the constitutions as well as a deep explanation of the fundamental difference between dictatorial and liberal-democratic constitutionalism. In the case of the first American and European constitutions, this meant the difference between the liberal society composed of free and equal citizens, and a feudal or even enlightened absolutist society. In the case of German

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constitutionalism after World War II, this signified a dramatic difference between a political system based on the idea that every person possesses human dignity as an inalienable quality, and the system that led to the Shoah. Currently – also for sociological reasons – references to natural law neither provide constitutions with generally binding meanings, nor legitimization. Who now possesses the authority to explain and justify constitutional content? In late modernity, in an age of globalization, close international cooperation, and the simultaneous differentiation of political and social systems, the burning issue is a comprehensive semantics which would help the new democracies overcome the ambiguities of the profound change, to cope with the complexities of the modern world, and to preserve something which distinguishes these “new democracies” from their political environment as well as, above all, from their antidemocratic past. In the remainder of this chapter I will debate the most important resources, the most crucial elements of social capital which influenced the postcommunist transformation and have the potential to provide constitutionalism in ECE with semantic steering. In other words, I will argue that there were important reservoirs of novel ideas which developed within the societies of “new Europe” and were decisive in the shaping of their distinctive character. According to this argument, the peaceful revolutions in East Central Europe and the subsequent transformations do not merely comprise a link in a long chain of modern revolutions; they had their distinct resources, and they all entered the process of change with their unique capital, their true assets in the form of novel ideas about constitutionalism, politics, civic society, and the rule of law. However, the question appears as to whether those novel ideas and true assets are strong enough to compete with social and political liabilities such as legacies of the immediate, communist past as well as far earlier legacies of deep social divisions and exclusions, characteristic of this part of Europe. These assets and liabilities contribute to the recent constitutional history of ECE, to the history of struggles for civic freedoms and liberties, but also to the history of struggles for justice that represent the most direct context for the new constitutions in this region. I will open my argument with a short discussion of the recent constitutional history, then turn to some fresh ideas regarding society, politics, and law whose authors were former dissidents of East Central European civil society proper. Finally, I will discuss the liabilities with



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which the new democracies were burdened when they embarked on their road to freedom. recent constitutional history: the context for democratic constitutionalism There are many ways to look for discursive resources, “frames,” or contexts important for constitutionalism after communism. Certainly, one cannot overlook the external contexts: European unification and globalization processes. However, constitutional history comprises the most immediate “frame” in ECE within which important ideas and arguments were invented and debated. The concept of constitutional history is used here in two meanings. In its broader sense, it is the history of written constitutions, the predecessors of the democratic ones. As I will try to demonstrate, this constitutional history was not without importance for the formation of constitutionalism after 1989. In its narrower sense, the concept of “recent constitutional history” refers to the ideas and social actions which were undertaken because of Stalinist constitutions – mostly against them, but sometimes also because some important principles and provisions were enshrined in them, even if these were never intended to be applied. Potentially, those principles and provisions could be and actually were utilized by the democratic opposition, whenever the possibilities for action emerged. From this perspective, constitutional history is not only represented in the form of written constitutions and the legal constitutional doctrine, but consists of arguments used in the public debates of social expectations, values, and convictions, and, importantly, of actions undertaken with respect to the constitution either in a positive sense (because it defined some rights or principles) or a negative one (because it strongly opposed certain fundamental, social expectations, and violated specific and significant values). To illustrate the latter point one refer to the far-reaching protests€ undertaken in 1976 by Polish intellectuals against the amendments to the 1952 Constitution which ultimately, notwithstanding the dissent, came to be the crowning finish for Stalinist constitutionalism€in Poland. The disputed amendments consisted of provisions guaranteeing the leading role of the Party and friendship with the Soviet Union. Those provisions manifestly violated key values of Polish

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Â� society – political sovereignty, national independence, and the supremacy of the Polish Sejm. One should also not forget the long traditions of constitutionalism in this region that was entirely disregarded after 1944. Just to illustrate this point, in Poland this would mean the tradition of the first written constitution on the European continent: the May 3rd Constitution of 1791 (Brzeziński 1998: 23ff). It would also be the history of the Hungarian Diet of 1790–1791 with its great reform projects (Balazs 1997: 300, 301), as well as that of the much older, pre-modern constitutional statutes of the Polish Republic of Nobles, the so-called Basic Laws which evolved from agreements between the King and the nobility in the 15th and 16th centuries. In Hungary, historical, pre-modern founding order evolved from a series of “cardinal” laws which, for several centuries, determined the basic conditions of that nation’s constitutionalism. The most important was the Golden Bull of 1222, a royal edict assuring the nobility a series of liberties similar to those named in the Magna Carta, and including the right to armed resistance should the King break his pledges (Paczolay 1999: 114). Likewise in Poland, the Republic of Nobles functioned on the basis of contracts between the kings and the nobility through which specific political rights were granted to the latter (roughly 10 percent of the general population). It would also be a history of the modernization undertaken in the Habsburg monarchy at the end of the 18th century by Maria Theresa and her son, Joseph the Second, of the enlightened absolutism especially evident in the Austro-Hungarian edition of Josephism with its Act of Toleration, land reform, and social and economic realityorientated concepts of law. Interesting is the later impact of AustroHungarian constitutionalism on the development of rule of law conceptualizations in those parts of ECE under control of that monarchy – the relative regional autonomy and freedom typical of this empire in the second half of the 19th century.1

1 ╇ It is not popularly known that traveling to Central Europe, and precisely to the northeast part of the Habsburg monarchy, Montesquieu was under a positive impression evoked by the organization of work and life in an industrial region close to Bratislava (at that time known as Pozsony). It is probably even lesser known that – as one reads – scarcely anything else had an intellectual impact in Hungary on the scale of De l’esprit des lois during the last decade of the 1700s – the moment when Book VIII, Chapter 9 of this work attained near biblical authority, and when the principle of a separation of powers appealed to the hearts and minds of the Hungarian elites (Balazs 1997: 135, 136). However, centralization-aimed reforms were much opposed in



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Finally, one should not overlook the meaningful experiences with constitutionalism in the period between the two world wars. New, democratic and indeed very modern constitutions were in place at the beginning of the 1920s across the entire region: from Czechoslovakia2 through Poland, Rumania, and Bulgaria, as well as Estonia, Latvia, and Lithuania.3 In Poland, the interwar period opened with the proclaÂ� mation of the democratic March Constitution of 1921 – often times referred to as a model for the current constitution.4 Hungary, with the exception of a very thin layer of its uppermost classes known as “Hungary’s Josephist stratum” (Balazs 1997: 291). The end of the 18th century is generally described in Europe as the “beginning of a new era” in Central Europe while, on the other hand, in the domain of the Habsburg monarchy, it was an era of efforts aimed at modernizing feudalism (known as late or “second wave” feudalism) and enlightening the feudal estates. Known as Josephism, it was initiated via the reformist endeavors of Maria Theresa and subsequently executed by her son, Joseph the Second, during the nine years of his reign. These alterations and adjustments were to modernize this backward region of Europe, centralize its government, and introduce judicial, tariff and commerce, and ecclesiastical reforms. Therefore, social and political policy-oriented concepts of law have a long ancestry in East Central Europe (Balazs 1997: 3, 291 ff). 2 ╇ The Czechoslovak Constitution of 1920 was primarily inspired by those of other European democratic states of that time and, in particular, by the French constitution: the system chosen was a parliamentary democratic republic, a two-chamber parliament, a weak president, and a cabinet responsible to the parliament (Hendrych 1999: 18, 19). That previous governmental system seems to strongly influence contemporary Czech constitutionalism. 3 ╇Although not exactly parts of ECE – and historically and culturally (with the exception of Lithuania) linked to the Scandinavian region – Lithuania, Latvia and Estonia represent a key example of path dependence within constitutional history. They provide clear evidence of the importance of initial democratic constitutions and constitutional arrangements in the development of later postcommunist constitutionalism. The Baltic States directly referred to their interwar constitutions after 1990, and some provisions and related institutions were indirectly or quite directly included in the new constitutional orders. Furthermore, some important but old debates became topical again after these countries regained independence in 1990–91. In Estonia this entailed a proposal for an unusually strong Supreme (National) Court controlling the Parliament – debated in 1919–1920 just before the first prewar Constitution proclamation – and proving significant in the formation of the current constitutional control of the legislature. Moreover, the Legal Chancellor of Justice established by the 1938 constitution posed as a model for a similar institution, under the name of Legal Chancellor (an independent official appointed by Parliament) adopted by the Estonian Constitution of 1992. Old debates and arguments were also referenced in Latvia where constitutionmakers reached back to ideas discussed in the 1920s and supplemented the new constitution of 1998 with a Bill of Rights on the basis of its interwar drafts. The Lithuanian Constitution of 1938 was restored in 1990 and presented an important foundation for the Provisional Basic Law and, afterward, for the 1992 Constitution (Taube 2001: 106– 111, 124–126, 170–171). 4 ╇ The so-called March Constitution, proclaimed on 17 March 1921, was the first working constitution in Poland. This was the real “birth certificate” for the modern, independent Polish nation, proclaimed after some 140 years of partitioning among the

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There would also be an important history of judicial review and constitutional adjudication that, in Central Europe, reaches back into the 19th century. Thus, independent of the parliamentary supremacy characteristic mostly of Poland after World War I, ideas of judicial review were expressed in other Central European countries as early as 1848–1849 when the Frankfurt Assembly proposed a special tribunal to resolve constitutional issues, including violations of individual€ rights. At that time, similar ideas appeared in Austria and were later€ elaborated by the most prominent legal theoretician – Georg Jellinek. These trends took on institutional form in the 20th century – most importantly following Hans Kelsen’s model of a special tribunal to decide constitutional questions. Such a tribunal was, in fact, established in Czechoslovakia, being first to adopt this model, and then in Austria.5 On the other hand, one should not forget the deterioration of many of these democratic constitutions in the early 1930s, and the formation€of so-called authoritarian constitutionalism. Based on the corporatist model of the state, this latter type was typified by a weaker parliament, a strong presidency answering only to “God and History” (as in the Polish amended constitution of 1935), limitations on civic rights in order to promote national and political purification, and the reconstruction, consolidation, and restoration of economic prosperity. However, this was quite evidently not the case of the 1920 Czechoslovakian constitution which was a model democratic one; one could state that interwar Czechoslovakia was a model democracy in a Europe that was otherwise descending toward authoritarianism. These democratic traditions may be long forgotten, or acquire mythical form incompatible with contemporary reality, in the consciousness Russian, Prussian and Austro-Hungarian monarchies. This constitution was used again as a model after 1989 since it defined the most important principles of a democratic republic. 5 ╇As it is argued, the model adopted in Austria already in the second half of the 19th century comprised the first functioning system of constitutional guarantees applied by the courts in Europe. Earlier institutions became the foundations for further development after the First World War. Thus, in Austria in 1920, and under the strong influence of Hans Kelsen, the first Constitutional Tribunal in Europe (in a contemporary sense) was established. This Tribunal was a state court, separate from the organization of other courts, and created for the adjudication of constitutional matters. Based on this model, a similar institution was created in 1920 in Czechoslovakia (Garlicki 1987: 40–43).



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of societies. They may be cultivated as sheer dreams of the past, even as distortions of historical truths. However, such dreams are important for new democracies. They influence political and legal debates, provide them with ideas, concepts, and arguments, and give hope for the future. Such dreams and myths are salient factors in the “resurrection of rights,” e.g., the long-lasting efforts of the Polish, but also other East Central European members of the democratic opposition aimed at constitutional protection and the enforcement of civic rights. They influenced mentalities and offered a reservoir of concepts used in public discourse. They opened possibilities for positive constitutional consensus after 1989. Constitutionalism in East Central Europe does not only have a long institutional tradition. It is also embedded in a lengthy history of the development of a legal culture that, especially with regard to Poland, was influenced by ideas that stressed freedoms and liberties in the specific context of national freedom, and not as inalienable individual€ rights (Osiatyński 1990; Walicki 1991; Kurczewski 1993). Also, especially in the case of Poland, an overwhelmingly Catholic country,€ the stress on human rights could be explained not only by this country’s modern history – foreign domination in the 19th and 20th centuries – but also by a critical stance toward man-made law vis-à-vis some higher order, typical of Catholic legal philosophy and doctrine. Characteristically, the impact of the Reformation in Central Eastern Europe was very limited, although one should stress that the Protestant Reformation was prepared not only by Wycliff in England, but also by Hus in Bohemia (Berman 1983: 24). Hence, ideas of the binding force and authority of national, secular law legitimized by its rationality, as well as legal independence as a consequence of national sovereignty, would find greater support and understanding among Czech society than in other parts of Eastern or ECE. However, one should not forget that a salient component of this political culture was also rooted in hostility against the state and its official law. Predominantly typical of Poland, this component of legal culture developed in the 19th century during which the nation was not sovereign and was occupied by neighboring powers. This element of the people against the state became still stronger throughout the whole region under Stalinist constitutionalism, that is, until the very Stalinist constitutions – under propitious circumstances – came to be used in the struggle for civic rights.

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True enough, the Stalinist type of constitutionalism seems to justify the concept of “empty space.” As mentioned in the previous chapter of this book, the pre-1989 constitutions contained many liberal freedoms and liberties, but in reality those freedoms and liberties acted simply as a veil, a superficiality or excuse for terror, arbitrariness, and lack of any judicial control over the communist party and the political police apparatus. Disguised under this constitutional surface, state crimes and the greatest human rights violations became part of everyday life until the very end in 1989. Even if open terror ended in the middle of the 1950s, people were shot on the German-German, HungarianAustrian, and Czech-Austrian borders until 1989. Behind the Berlin Wall dissidents were killed by “unknown hands,” people were arrested, kidnapped, and tortured not only in the 1950s, as popularly believed, but until the dying days of the communist regimes.6 Hence, one can argue that a purely legalistic approach – a simple analysis of the written constitutions – would be justified only in the case of regimes governed by the rule of law. It can neither be applied to analysis of a dictatorial regime, nor to investigation of the process of its transformation. Nonetheless, even in the case of authoritarian or dictatorial regimes, the use made of fundamental legal texts, and above all the actions against them, cannot be ignored. One cannot also overlook the fact that the Stalinist constitutions posed an important context of experience for the societies which happened to live under them. In their peculiar and obverse way – because of promises they contained which were violated, or because they were implemented in societies with a tradition of constitutionalism – these constitutions finally provoked great and sincere interest in fundamental human rights issues, in legal protection, and in “law in action,” at least among some citizens. They led to legal debates and actions undertaken because of violations

6 ╇Acts of state crime – murders of political dissidents, arrests, and other types of persecution such as the prohibition to travel abroad or deprivation of citizenship – did not only happen in the 1950s but took place until the very collapse of the communist system, i.e., until 1989. They were more blatant and cruel in the late 1940s and early 1950s, yet the totalitarian state did not cease to exist with the death of Stalin. Its secret services were very active in monitoring society and “eliminating” its “dangerous elements” (democratic dissidents) in Poland and elsewhere in the so-called posttotalitarian period, i.e., the late 1970s through the 1980s (See Łoś, Zybertowicz 1999: 261–307).



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of constitutional provisions or because of some deeply-rooted representations of human rights in social consciousness. Here the already mentioned more distant constitutional history of those countries proved to be of great importance: dreams of freedom and liberty made some societies more sensitive towards their violations. They also functioned in the international political context of the Helsinki peace process for which, beginning with the 1970s, issues of human rights protection became something more than empty phraseology. The impact of the Helsinki process on the struggle for human rights in Eastern Europe cannot be underestimated. Moreover, as we were reminded during the 30th anniversary of the Charter 77 proclamation, the direct impulse to issue the initial memorandum which led to the Charter’s further activities was precisely the publication of the Helsinki International Convention on Human and Civic Rights in a legal journal in Czechoslovakia in 1976 because that country’s government had signed the accords in 1975 (Palata 2007: 9).7 The international context was also meaningful because of the growing indebtedness of communist regimes to foreign banks: the states had to seek legitimization of their activities wherever possible in order to justify the system they represented. One of the justifications (after the ideology proved to be phony and the superiority of the communist economy just a lie) was precisely legality, even if it was a consequence of their precarious position. Therefore, referring to the most recent constitutional history in Poland in its most narrow sense, the previously quoted Polish sociologist, Jacek Kurczewski argues that throughout the 1980s the Polish regime “…was already deeply immersed in the legal legitimization that constitutional lawyers were pressing towards legalizing every change” (Kurczewski 2003: 164). He further recalls that well before 1989, as a result of pressures by the Solidarność movement, a Constitutional Tribunal was established in 1986, and the institution of an ombudsman (Commissioner for Citizens Rights) in 1987. In fact, the Constitutional Tribunal in Poland proved effective even before the government turnover, even if it was functioning in an “aggressively hostile environment” (Schwartz 1999: 195). Its decisions were not final (until 1997) and could 7 ╇ The aim of the Charter was to force the communist regime to fulfill the obligations resulting from pacts and treaties which it had undersigned. In the words of Vaclav Havel, one of the three authors of the Charter,”… the matter was to catch them by their word: here it is written down, and we want it to be observed” (Palata 2007: 9).

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be overruled by a two-thirds parliamentary majority, but that notwithstanding, the Tribunal began to exercise tighter control of the executive branch of government. Its rulings concerned protection of human rights, and some resulted in the nullification of legal norms, mostly sub-statutory legal acts; it also invoked constitutional provisions calling for equality and social justice as well as the (albeit unwritten) lawgoverned state principles. Its activity was highly praised because the Tribunal successfully limited the well-established lawmaking practices€ of state bureaucrats, while gaining the acceptance or tolerance of the communist government. As Kurczewski observes, even General Jaruzelski’s regime in Poland, after the initial, unconstitutional assumption of extraordinary powers on 13 December 1981, was seeking legitimacy with help of its legal experts (Kurczewski 2003: 176). To this one should add that the most popular legal institution in Poland, the Ombudsman also acted on the basis of then-binding law and constitution, and was also able to successfully use them in protecting some human rights. In Hungary the old constitution was substantially amended by the still undemocratic parliament before the first democratic elections in 1989. That constitution thus became the original frame of reference for further development of democracy and constitutionalism in that country after 1989. With respect to Hungary, the accent on international law and on the human rights protecting covenants is to be emphasized as part of Hungarian constitutionalism at the end of the 1980s. In 1989, in a critical situation when thousands of East Germans were fleeing the former GDR and seeking temporary refuge in other countries en route to the German Federal Republic, Hungary was the first country to offer them the possibility of staying on its territory until they could travel further. The important political figure in the promotion of human rights protection was the minister of justice and a legal scholar who, during a conference conducted in the middle of 1989, identified the three key issues for the Hungarian transformation: the rule of law, constitutionalism, and human rights. Dissenting citizens themselves also made use of the Stalinist constitutions. In Poland the most prominent example of such constitutionbased activity stemmed from actions by the Committee for the Defense of Workers founded by prominent intellectuals in 1976 to defend the workers severely persecuted for their protests against a governmental plan to raise prices. The Committee’s strategy was to act openly and publicly in order to inform the general public in Poland and abroad



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about the violations of the constitution and the law. The Committee referred to the international covenants on human rights protection signed by the communist authorities. It organized legal assistance for workers in 1976, and later, for other persecuted persons. It should be kept in mind, however, that these activities – conducted by dissenting intellectuals aided by some well-known lawyers and an unknown number of ordinary citizens – were also subject to severe treatment by the communist government. Another point was the successful struggle of Polish peasants to keep their farmlands. This consisted in their stubborn refusal to collectivize – most brutally punished in the late 1940s and early 1950s€– and simultaneous efforts aimed at legally protecting farmland ownership. An outcome of this combined battle was that Polish peasants were triumphant enough to win the introduction of amendments to civil code and the constitution with regard to the protection of private ownership of farmland. These constitutional amendments were proclaimed exactly in 1976, just as Polish constitutionalism was to take its final, Stalinist shape (Daniel 1994: 16). Dissidents in other communist countries – notably Czech dissidents, post-1968 refugees, and members of Charter 77 – made use of external, international law with relation to internal law. In Czechoslovakia, Charter 77 originated as an attempt by harassed dissidents to support underground musicians who, in turn, were threatened by criminal proceedings for their artistic activity. We are reminded that the Charter€ strategy was to “operate within the discourse of legality and the need for respect for the law and to point out the ‘double-speak’ nature of principles of socialist legality and the communist regime” (Priban 1999: 33). Finally, there ensued the events which have, in truth, contributed to world history. According to an observation on recent Polish history, the communist People’s Republic was characterized by a “multitude of revolts” (Ekiert and Kubik 1998: 31), and it is due to the struggle of Polish citizens and their organizations, illegal and legal alike, by all possible means that “the system” finally changed. These revolts were not only economically motivated, not primarily caused by economic deprivation. They were revolts against individual and national oppression, above all, and against some nasty features of daily existence: the penetration of everyday life by the omnipresent state security, the blackmailing, and the control of national culture as well as of individual consciousness.

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As a result – and here one can cite not only the Polish protests of 1956, 1970, 1976, and 1980, but also the Berlin revolt of 1953, the Hungarian 1956 revolt, the “Prague Spring” in 1968, and the 10 million strong Solidarność formation in Poland, the 1980 Gdansk Agreements, and the formation of movements aimed at the protection of civic rights€in other East Central European countries in the 1980s – semiautonomous public spaces were created, modicums of intellectual freedom appeared, a limited mobility was guaranteed, and a degree of institutional independence emerged within the universities or the media. This semi-autonomous sphere was broader in some countries€– notably in Poland and in Hungary. In the latter case one can speak of the “happiest barrack” in the camp (Sajo 1994: 219). Yet this sphere was much more limited, almost non-existent, in the then Czechoslovakia and the former German Democratic Republic. A crucial postulate of these revolts, aside from those concerning individual rights and liberties, freedom of association, and some form of economic reform, was a demand for national freedom, political sovereignty, and civic rights. In this they differed little from other anticolonial revolts, but in their call for a human right to private life, and to “normality” undisturbed by ever-present ideological dominance and political control they differed greatly. Thanks to them, novel concepts and propositions entered the social and political sciences vocabulary and the concept of civil society experienced a great comeback. One such novel concept is that of anti-politics, propagated by the most prominent members of the democratic opposition. For Gyorgi Konrad, anti-politics encompassed both descriptive and normative contents (Konrad 1985). This concept – or idea of anti-politics as a means by which to live under Stalinist constitutionalism – was present, too, in the writings of Vaclav Havel in Czechoslovakia or Adam Michnik in Poland. It was also present in the slogan “to combat evil with good” propagated by the Roman Catholic Church in Poland, at least by its most outspoken members. In its descriptive content antipolitics referred to the formation of the “second society” or parallel polis, and to activities of a civil society going beyond the limits of the “obsolete” contract on which the communist system rested – the negative constitutional consensus. Initially, the concepts of anti-politics and of parallel polis were used to describe not only cultural underground activities but also the growing scope of the “informal” economic system composed not only of mutual networks of exchange, but actually representing growing, even if illegal, opportunities for



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individual profit. In light of what Vaclav Havel has written, the concept of anti-politics had strong normative components referring to the “living within the truth” proposition which was at the disposal of ordinary people and could be used as a means of struggle against the system’s lies (Havel 1985). For Adam Michnik this was related to the idea of a “new evolutionism” – to a proposition that the system could be defeated peacefully by using every latent option in the fight for civil rights. For the Roman Catholic Church in Poland this was associated with a belief that the “evil system” – communism – should and could not be combated by another “evil” – a revolution bringing violations of human rights and bloodshed – but by peaceful resistance. The normative contents of the anti-politics concept also referred to the society’s selfdefense against the omnipresence of the political system, against a “politicization of life-worlds” – of family lives, private time, and the words people used – a “new speak” full of “-isms” penetrating colloquial language. Quite clearly, rights to privacy were also stressed here, together with a postulate that the private and public spheres be delineated. In the newer edition of this concept the accent is placed upon politics based on morality and citizen solidarity, and on a pluralistic civil society as a life-giving environment for political parties without which they would transform themselves into mere “lifts to power” (Havel, Klaus, Pithart 1996: 15). Further, anti-politics was understood as that sphere of social life opening a possibility of experiencing human authenticity and independence. As such, it was present in the dissident project of the abovementioned parallel polis worked out by the Czech intellectual, Vaclav Benda who suggested the creation of parallel structures of intellectual,€cultural, and spiritual life which would ignore the official structures of social life colonized by the communist party, its coercive power€and aggressive ideology (Benda 1985: 112). As he observed, in Czechoslovakia people formulated their goals in existential and moral language closely related to their lives, and demanded more than just the rather obvious political reform. They demanded to be freed from totalitarian politics and to be free to live “normal” lives as people; they wanted heterogeneous and ambiguous ideas, not a specific social and political vision, even if some primary consensus on national and political freedom was present and the aspired-to models of liberal democracy existed. Therefore, the events that led to the demise of the communist systems in Central Eastern Europe were also defined in the anti-political terms of a “normal” or “decent” life for ordinary people,

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their freedom and their autonomy (Priban 1999: 37; see also Preuss 1993: 642–655). The concept of anti-politics, as part and parcel of the social dowry with which the Eastern European societies entered the European Union, thus offers a proposition to supply democratic politics with a deeper meaning, to reconceptualize it in not purely technical, but above all, existential terms that refer to the lives of individuals. It is not a proposal for withdrawal from the public sphere, but for a reconceptualization of democracy and power with regard to life within the faceto-face social settings of a differentiated, pluralistic society. In its more ambitious edifice – that proposed by Havel or Patocka, or representatives of that part of the Catholic Church personified by Pope John Paul II or Father Jerzy Popiełuszko – the anti-politics concept suggested the supplementation of regular politics by the dimension of human existence and protection of human dignity. Thus, as one Polish scholar observed, the decay of communism in Poland and elsewhere in ECE “…has its long and complex history…” (Kurczewski 1999: 199). This resulted in the introduction of new concepts to social and political sciences, and the reintroduction of some classic ones interpreted in new contexts. Hence, the formation of constitutionalism in East Central Europe bore certain key intellectual resources and semantics. the return of civil society, reintroduction of morality, and renaissance of history in the public sphere after the gulag experience The return to a sociological discourse of civil society, allegedly a classic€ concept long forgotten, was due to the appearance of novel phenomenon, i.e., to the peaceful overthrow of a dictatorial system through the activities of ordinary citizens and not by enlightened leaders or occupational armies as had been in the past. The most important political aspect of the acting civil society were the activities and aims of dissident groups in due course augmented by the massive, emotional demonstrations and moral support of the 1989 events (in Poland also in 1980). As correctly noted, these groups were “moralizing” and, as argued by a prominent Polish sociologist, Eastern European civil society did not initially display the usual and archetypal interests or characteristics: neither was it composed of autonomous economic agents, nor did it consist of political civil society in its traditional sense.



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Because of the great atomization of communist society, it was not organized into associations as Alexis de Tocqueville would have liked and expected. Instead, civil society in Eastern Europe might rather be described as a moral entity (Szacki 1994: 123). To this one should add that the dissident groups in Poland enjoyed the very strong support of ordinary citizens who massively engaged in the parallel – i.e., unofficial and illegal – circulation of books and pamphlets, in the printing and distribution of such materials, in illegal broadcasting, and the organization of legal and human aid for the imprisoned or interned. Therefore, another important concept for the investigation of postcommunist – and in fact of any post-dictatorial or post-authoritarian constitutionalism – is that of civil society in its historical and social context. In the case of ECE, this meant not only a civil society whose activities were simply aimed at dismantling the existing system and constructing a new one as some of its critical observers would have liked (Frentzel-Zagórska 1988: 4). It is also a civil society concerned with human rights protection as its most distinct feature, characterized by its efforts to disclose the communist lies, and by its acts of civil disobedience or simple insubordination: not taking part in orchestrated demonstrations or faked elections while cultivating historical, national traditions. It is also a civil society of a great sense of responsibility. Initially, this was a civil society predominantly characterized by its moral concerns, by its concerns with the moral quality of its daily life rather than with grand politics or economic freedoms (Szacki 1994: 112 ff). These moral concerns, especially those regarding fundamental human rights protection, represented significant capital with which the societies of East Central Europe entered the process of transformation. Currently, they also function as an intervening variable in the process of political transformation, establishment and interpretation of the rule of law (especially with regard to the legacies of the past), and also to economic transformation and the process of European integration. Such activities as constitutional complaints, or actio popularis, presented before constitutional courts, petitions sent to ombudspersons, and complaints addressed to the European Tribunal of Human Rights in Strasburg are crucial to the legitimization of the new order after the collapse of communism. In the past, members of Eastern European civil society were authors of novel concepts and propositions, potentially important for the semantics of new constitutions. One of the most crucial messages for politics and the public sphere was formulated by Vaclav Havel in his

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famous essay published more than twenty years ago. It included the above mentioned proposition “to live within the truth” as a way to combat latter-day totalitarianism. In this essay Havel also described ways of accommodating the requirements of late Stalinism (as a matter of fact he wrongly labeled it a post-totalitarian system) by ordinary citizens in their day to day lives and system functionaries in their offices.8 According to him, as parts of the gears of the machinery, the citizens, but above all, the system functionaries played the role of “marionettes” or “puppets of the ritual” (Havel 1985: 49) therefore contributing to its preservation. There are close affinities between this postulate by Vaclav Havel, those made by other Czech and Slovak authors published in the same collection of essays as Havel’s, and other ideas concurrently formulated by Adam Michnik and Jacek Kuroń in Poland, or Georgi Konrad in Hungary. These authors were not philosophers who were preparing projects of a better future for the masses from their desks in ivory towers. One could say that here we were dealing with practically grounded political and social ideas about the then-contemporary order. There are at least three areas in which the “living within the truth” and associated propositions proved meaningful. Firstly, they contributed to a rethinking of civil society and civil courage as crucial components, obviously needed if one were to live within the truth in a totalitarian society. In this way the activities of dissidents but also of ordinary citizens contributed to a rethinking of the civil society

8 ╇Although some thirty years ago most social and political scientists, politicians, commentators and even some of the most prominent Eastern European dissidents believed that, more or less during the 1970s, the communist system had changed considerably. It appeared to have taken on a more “human face” or simply deteriorated, so some described it now as “post-totalitarian.” Nevertheless, more recent research proves that the system preserved the most salient features of Stalinism either quite openly, or in a “dormant” form. Firstly, as shown in this chapter, Stalinist constitutions were actually concluded in the mid-1970s and crucial provisions were added precisely then. The system, in fact, completed its semantic stability. Secondly, the “Iron Curtain” still existed: people were killed at the borders (see footnote 6), some dissidents were killed by “unknown perpetrators” in their own countries, and others were kidnapped. Moreover, suddenly and with considerable energy, the governments in ECE and the German Democratic Republic undertook efforts to nationalize whatever was left, namely small, private businesses. The slogan of a “moral unity of socialist society” was invented in the 1970s, and control over the private lives of citizens was exercised until the very end of the 1980s. Of course, due to many factors, the system was far less openly and directly brutal than in the 1950s, but again, Stalinist totalitarianism would have different degrees, yet preserve specific features nonetheless.



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Â� concept€ in the context of late totalitarianism: the civil courage to oppose€it and denounce its lies. Here one should add another concept equally important for civil society in its East Central European context – “civic prudence”: the conscious imposition of limits on claims and actions, respect for contracts, consideration of the international factors. In other words, conscious strategies taken by dissidents and ordinary people to avoid devastating conflicts and the formulation of risky postulates during conditions of utmost uncertainty, and to use “truth” as a weapon in the fight against the oppressive system. “Civic prudence” was inherent in the already mentioned ideas of the “new evolutionism,” “self-limiting revolution,” and “non-violence principle.” This was summarized by the previously mentioned Jan Patocka in a suggestion that the focus not be on “the spirit of revenge, but the will to truth” (Patocka as cited in Battek 1985: 97). Such a civic prudence was demonstrated by the people on the streets during the most dramatic moments of the 1989 upheaval, and the subsequent peaceful overthrows of regimes in Eastern Europe. These people on the streets, characterized by civic prudence were affected by their experience with the cruelty of “revolutionary forces.” Secondly, the concept of “living within the truth” directly referred to human existence in its moral or metaphysical dimension. Thus, Eastern European, but above all Czech dissidents were influenced by existentialist philosophy on the part of some dissidents, and by religion on the part of others. As another Czech dissident wrote, religion in East Central Europe could contribute to the overcoming of the general crisis and deterioration of politics because of a very high level of credit extended to the Roman Catholic and other churches, gained due to their peaceful but often effective opposition to human rights violations. Moreover, this author maintains that”… hic and nunc, [we are] faced with a single need, one that can be as easily formulated, theoretically, as the need of new theology, for a new substance of faith, a new philosophy of science, and for a new polis.” (Benda 1985: 111). In practical terms, the political aspect is of a certain priority in Eastern Europe – somewhat curious in the history of Christianity – if only because here, every expression of faith is automatically considered a political fact. Thirdly, great concerns with history have also been important in the current debates on the constitution and constitutionalism. Due to a growing awareness of social subjectivity and authenticity, and therefore

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of social differentiation, the question appeared whether an a-historical project for a constitution directed only towards the future is socially acceptable and charismatic enough to influence the formation of a constitutional community. In contrast to an a-historical and instrumental constitutionalism, it was also argued that historical memory strengthens the awareness of heterogeneity in the world, while historical forgetting, even in the name of progress, creates an illusion of homogeneity and system unity (Priban 2002: 156). The reintroduction of history into the public sphere leads to the reconstruction of social processes and phenomena, and of the many forms of power and oppression close to the people’s experiences and perceptions, so important in the interpretation of constitutional principles and the concept of rights. This type of history links the “living within the truth” proposition to the experiences of gross human rights violations in societies in which the perpetrators, instigators, and victims have lived together. Hence, the impact of civil society on the authorities – i.e., the impact of mothers of soldiers, families of disappeared persons, and associations of people deprived of their property rights, as well as ordinary bystanders who saved documents before they were destroyed by the state security, who protested against the immunity and amnesty granted to perpetrators and instigators, who directed reports and evidence to international organizations such as Amnesty International, and complaints to local and international courts – represents the most crucial phenomenon typifying all post-totalitarian and post-authoritarian societies. In this way Eastern European societies were struggling also to protect their authentic experiences against official constructs, imposed on them “from above,” an issue to which I will return in the next chapter. Therefore one can only stress once more that, in ECE, the unique historical sensitivity has its roots in experiences with past human rights violations. As such, it contributes to the revival of moral feelings of shame or pride which are, as we know from classic thinkers, important additives to constitutionalism. Moreover, past human rights violations reckoning comprises a crucial factor in contemporary public debates. These, in turn, present an opportunity for a large-scale learning process of social enlightenment regarding the socially authentic identity. The concepts and propositions of living within the truth, of civil society, of civil courage, and of civil prudence; the interests in the ethical foundations of social life and its institutional arrangements; as well as concerns with a genuine history close to the experience of ordinary



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people – all of these elements comprise a particular kind of social capital that made one think about the axiological foundations of democracy in East Central Europe. All of these factors were supplemented by important criticism of technologically understood system rationality, famously expressed in the “Heretical Essays…” written by Jan Patocka – himself a victim of late Stalinism in Czechoslovakia,9 and especially in his “Is Technological Civilization Decadent, and Why?” (Patocka 1986). His arguments were only to some extent similar to those of the Frankfurt School, since Patocka was influenced by existentialist philosophy and by the writings of Martin Heidegger. He not only criticized the Western concept of technique, but was also convinced that the communist state was its exemplification. He also stressed the historical experiences (in this case the Czech) with democracy as an important€part of a nation’s true existence. Others, most prominently Vaclav Havel (also inspired by existentialist philosophy, phenomenological sociology, and the idea of authentic life), criticized the system-thinking typical of the communist version of modernity and the idea of system rationality (Havel 1985). The same author argued for an existential revolution as a phenomenon of late modernity (different from the great revolutions which initiated modernization in Europe), and juxtaposed system rationality with a natural structuration and differentiation of society. interpretations of the rule of law Two clearly contrasting positions were elaborated that concerned the concept of the rule of law or the law-governed state in ECE. The first – according to which the rule of law equals legality – is entirely free of and does not refer to any set of substantive values but solely to the question whether the law is observed by the public authorities (Morawski 1999: 42). This conformed to the simplistic and even primitive, or often hypocritical version of legal positivism promoted not only by functionaries of the communist party, but also by lawyers educated in a culture of the unquestioned binding force of written law issued by legal authorities. The only values it refers to are legal certainty and 9 ╇Patoczka was the victim of “late Stalinism” himself, dying after an interrogation session.

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predictability as the ultimate and purely formal goals of the legal system.10 Before and after 1989, the formal concept of legality was supplemented by a contrasting ideology of human rights protection.€This concept was proposed as a new semantics for the emerging liberal democracy as its deep and fundamental justification, and inspired the second, the anti-positivistic concept of the law-governed state directly reflected in all postcommunist constitutions. However, there are some burning problems with the ideas of human rights protection in a legal culture dominated by legal positivism. Human rights protection could be used to consolidate the status quo and protect existing rights and privileges, something to which I will return in the next chapter. The concept of the rule of law was innovatively supplemented by the democratic dissidents of ECE. Their ideas were closely connected to an anti-positivistic understanding of the rule of law, and reflected close links between law and morality not limited to the usual references€to some versions of natural law. These novel ideas on law and the rule of law concentrated on three key topics: the content of law, the meaning of legality, and the law’s legitimacy. As already emphasized in the Prologue to this book, thanks to such authors as Vaclav Havel and other Czech and Slovak intellectuals, not only were the lies of the “socialist legality” denounced. The new ethical and existential aspects of law were actually debated, in contrast to the bureaucratic and technocratic law of late communism. In the most powerful critique of “socialist legality” – not just as a rhetorical veil for terror, even if limited to a minority of dissidents and human rights activists but, in his words, as a means of the ritualization and petrification of public life – Vaclav Havel accused communism of “blind automatism that drives the system” and turns people into “marionettes” and “flunkies” of the communist ritual (Havel 1985: 30). Against the backdrop of such criticism, important positive propositions were formulated. Thus criticism led former dissidents to conclusions that law and government are subject to some higher demands of a “decent human order” as another member of Charter 77, Jan Patocka

10 ╇ Ironically, legal certainty and predictability were arguments used by the Soviet prosecutor general, the previously mentioned Andreij Vyshinskij, when he introduced exceptionally harsh punishments for crimes against the communist state into the Soviet penal system in the early 1930s (Kurczewski 1991: 194).



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once put it. The heart of this decent human order is an inviolable sphere – one beyond the reach of the political authorities yet which also must be protected by the political authorities. Therefore, a law is ethical if it contributes to the protection of such a sphere. In the words of Patocka,”… nothing but the conviction that states and society as a whole also consider themselves to be subject to a moral sentiment that they recognize something unqualified above them, something that is bindingly sacred and inviolable even for them, and that they intend to contribute to this end with the power by which they create and ensure legal norms” (Patocka 1996; also in Priban 1999: 217). It has been this author who has most strongly opted for an ethical concept of law in opposition to its purely technical understanding, and also in opposition to the technocratic nature of modern European culture. These high demands for law and the rule of law expressed by Czech dissidents were supplemented by the idea that legality is locally and historically bound, and above all rooted in experiences of gross injustice, human rights violations, and the reduction of law to a mess of bureaucratic prescriptions which were part and parcel of the life-worlds of Eastern European societies. Such ideas were elaborated further in the form of arguments regarding the interrelationships between the generalizing impersonal language of law and the particular authentic situations in which members of societies live, and between the universal legal concepts (above all of human rights) and their locally bound interpretations. The universal, but historically rooted concept of the rule of law thus referred directly to universal human rights on the one hand, and the experiences with Stalinist constitutionalism and earlier civic and democratic traditions of particular societies on the other. Therefore, the debates on law, the rule of law, and the conceptualizations of rights not only of the Czechoslovak, but of the Eastern European dissenter, generally oscillated between various vocabularies. References to positive law, human rights, individual experiences of injustice, as well as civic and democratic traditions and current democratic aspirations have been made in order to render the universal and formal language of the rule of law a part of the non-legal structures of society (Priban 2002: 183). In the reconstruction of this pre-1989 meaning of legality and the rule of law, the varying vocabularies led to such propositions that took into account the plurality of experiences and the authenticity of their participants, while advocating for the dependence of a clear-cut, impersonal legal language on the”… impure structures of our social life and thinking” (Priban 2002: 189–190).

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Concerns with moral and human aspects of the law were also expressed elsewhere. They were prominent in the social teachings of the Catholic Church, and they were evident in the debates on law conducted, for instance, by Polish sociologists of law who strongly advocated more realistic and pragmatic conceptualizations of law based on empirical findings but not devoid of moral interpretations. For Polish sociologists of law who conducted research on law and morality, legal consciousness, and the prestige of law, of special significance were the early teachings of the founder of the sociology of law, Leon Petrażycki, and his theory on mutually reinforcing legal and moral development, as well as his idea of the citizen “who holds head high” (Petrażycki 1985: 342). Thus, a part of the intellectual legacy of Eastern European dissidents lies in some novel ideas not strictly limited to criticism of the legal hypocrisy of late communism, but which also take a highly critical stance toward formalistic conceptualizations of legal positivism, the concept of law as a technical instrument, as well as abstract (devoid of any references to local democratic traditions or experiences with totalitarianism) conceptualizations of human rights. Hence, those novel ideas consist of propositions for the contextualization of the rule of law, of accommodation of its universal provisions to local interpretations based on direct experiences with human rights violations, and accommodation of local traditions to the general requirements of the rule of law provision. The arguments and topics raised in the mid-1980s by the abovementioned authors were novel not only in the former communist countries. These debated concepts of law and its legitimacy have remained in sharp contrast to recent utilitarian approaches to law with their stress on rational choice, effectiveness, and utility. The East Central European concepts were very different from those stressing a fictitious nature of law – a lack of reference of law to social reality or to extratextual social norms: customary, ethical, and moral. They questioned the law’s self-referentiality, not to mention the pessimistic postmodern conceptualizations of law and legal discourses, as completely depersonalized or dehumanized – as an abstractly rational oppression indeed. These ideas addressed the great questions of late modernization, and as such represent an extremely valuable part of the social endowment with which the postcommunist societies began a process of constitutionalism formation.



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the eastern european syndrome: a brief outline of difficult legacies, old and new A student of recent constitutional history and the formation of legal cultures cannot ignore the difficult legacies which currently weigh as key impediments to democratic constitutionalism in East Central Europe – that is, factors justifying a cultural pessimism with respect to the actual installment of constitutionalism. This birthright is of recent, but also of quite distant origin in the history of this region, especially in the history of the 19th century so decisive in the formation of modern, European constitutionalism. In ECE these legacies encompass the experiences of long lasting feudalism, late modernization, partitioning, alienation of political authorities from local populations, as well as a chasm segregating the upper, enlightened classes from the lowest ones, mostly peasants. This onerous inheritance is of a cultural and structural nature: it strongly influences the formation of anti-legal cultures, anti-civic mentalities among large segments of societies, and their entire lack of understanding of the rule of law or law-governed state. These divisions overlap with legacies of political ones: the lack of national independence for the greater part of modern history which was typical of this region. Thus, one should certainly point to historically rooted phenomenon€– among other things the exclusion of the “lower” classes from the public space and political process – which also seems to be of great importance nowadays. The deep structural division is characteristic, and even symptomatic, of the traditional East Central European society and is represented in the social consciousness or even language. This is the gap between “us” – the common folk united by informal networks, and perceiving itself as virtuous – but exploited by the distant “them” – the authorities and upper classes who possess significant capital (financial or intellectual) and are always profiting. These historical divisions contribute strongly to feelings of exclusion or even humiliation present in the consciousness of large sectors of Eastern European societies. Hypothetically, they also account today for the public passivity of a large part of the population, its disregard for democratic procedures, and a recurring popularity of populist parties and ideas. It is emphasized that a crucial part of the early constitutional history€and the broader history of the rule of law in this region – with the

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notable exception of Czech lands – derives from a rather elitist group arising in the mostly agrarian societies of Poland, Hungary and Slovakia whose members were excluded from not only the political but also legal discourse. As pointed out with respect to Hungary, in the late nineteenth and then the interwar period, the Hungarian legal order undoubtedly possessed elements of the rule of law and of a constitutionalism benefiting from a tradition of independence and buttressed by the legalism characteristic of the Austro-Hungarian monarchy. Strikingly, however, the reach of that legalism never extended far beyond Hungary’s upper and middle classes. For poor farm laborers and small landholders – so-called “dwarf holders” – notions of liberal democracy or of the rule of law would be”… incomprehensive, and absurdly irrelevant in terms of their daily lives” (Pogany 1999: 34). Similarly, even if the rule of law as a “Lord in a free Kingdom” was already praised in the 16th century by a prominent Polish political writer, Stanislaw Orzechowski, such ideas and interests in the rule of law had a quite narrow social basis in pre-partition Poland; at best it was limited to 10 percent of her population, i.e., to the nobility. This was also the case of many other East Central European countries where the irrelevance of official, state law in popular consciousness seems evidently congruent with late modernization and the exclusion of peasants from the public sphere. To this, one should add a lack of understanding and support for the abstract, formal rationality of law and legal procedures when contrasted with the rules of everyday life, exchanges of favors and goods, as well as the rules of honor or mutual trust of closely knit, politically oppressed societies and economically oppressed lower classes. In the popular consciousness, the old divisions between the “haves” or “them” versus the “have nots” or “us” – between the “upper” and/or “enlightened” classes who impose some abstract rules versus the “simple folk” who act according to well known customs and rules of exchange – the normative orders of everyday life are revived today in the form of a “complexity of legality” or, in fact, many “legalities.” This is observed not only in Hungary, but in all postcommunist societies. This complexity takes on the form of different levels of significance in state law and is evident in the truly different rules regulating interactions between the constitution and the state controlled by a constitutional court, and between the state and its citizens regulated and controlled to some degree by the law. Yet it is also penetrated by other, informal rules of exchange. Made manifest in today’s clear examples of



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corruption, clientism, and other nepotistic relationships, it exists in the rules of interactions between the citizens themselves – often regulated by extra-legal norms of mutual exchange (Oerkeny, Scheppele 1999: 55–76). These many legalities often coexist with a very low, “demand for [official] law” (Hendley 1999: 88–108), but also, with the formation of specific informal rules of exchange and collaboration – perhaps better suited to the complex reality of postcommunist transformation than the official law. Such divisions comprise one of the hypothetical factors explaining the visible difficulties with democratic consolidation as well as the formation of democratic and liberal constitutionalism. These structural legacies are symptomatic of an Eastern European syndrome in which deep social divisions and exclusions present in the consciousness of people are typical. This syndrome consists of cultural, political, and economic components reflected in discourses on law and the democratic constitution. The political legacies are evident in the conceptualizations of the state and government in societies in which, as in the case of Poland, the state and state authorities represented occupying powers for a considerable part of this nation’s modern history. There is a deep and clear imprint left on the popular consciousness of a hostile and oppressive government imposing hostile and oppressive law – be it Prussian, Austro-Hungarian or Russian law during the partition of Poland in the 19th century, be it the Nazi German and Soviet partitioning of Poland between the III Reich from the West and the USSR from the East based on the Molotov-Ribbentrop Pact during World War II, or be it communist law imposed with the help of the Red Army afterward. Such experiences led not only to the formation of a deeply rooted suspicion toward any state authorities, but also to differentiation between the imposed state law – or orders and proscriptions – and the informal rules that enabled the people to unite and resist the oppressive state. To illustrate this deeply rooted suspicion one might cite contemporary€ examples of the informal “collaboration” of state officials with citizens – suggesting solutions and circumventions of the bureaucracy – against the political authority and the law.11 11 ╇Here one can quote the case of collaboration by a state taxation agency official with persons who were trying to avoid taxation – not due to official corruption but because aiding citizens at the cost of the state seemed to be more ethical than executing the law (Wedel 2001: 8).

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Another response to the communist oppressive state is the formation of informal groups and networks developed throughout the region in order to circumvent bureaucracies, and, above all, to circumvent the law. In fact, mutual networks and connections based on informal rules of exchange and reciprocated assistance became dominant in times of the greatest oppression – in Poland during the partitions, in Poland and elsewhere during World War II, and everywhere in the region during communism. Sometimes they led to a phenomenon called – with regard to Poland – “dirty togetherness” that consisted in eluding the law, using it to one’s own advantage, and profiting via cliques and tightly knit networks (Podgórecki 1987). Sometimes, however, they were helpful in the development of some forms of solidarity, or, on the other hand, of economic activity and regulated informal exchange (Łoś 1990). Authors investigating the legal and public cultures of this region rightly maintain that in a society in which people find it necessary to be sly and cunning, the boundaries between the legal and illegal understandably blur and vanish (Kurczewski 2007). Obviously, this does not mean that the entire legal and constitutional€history of East Central European societies consisted of the formation of anti-legal and anti-civic cultures. The preceding sections of this chapter have demonstrated the contrary. However, anti-legal and anti-civic legacies cannot be overlooked when one examines the frames and contexts of postcommunist constitutionalism formation. To all these difficult legacies is to be added the already mentioned presence of ethnic nationalism in many East Central European societies, notwithstanding the tradition of a multicultural and multiethnic history behind them. This may influence the process of European unification of societies which are not only proud of their newly won political sovereignty, but are also seeking the foundations of their personal identity. Nationalism, not necessarily ethnic, was strengthened by the humiliation experienced by these states after 1944; ethnonationalism, on the other hand, was supported by the political reconceptualization of the nation and citizenship in purely ethnic and bloodline terms. This was, in many cases, a side effect of the post-World War II geopolitical changes: a kind of “ethnic cleansing” in the second half of the 1940s, the result of changed political borders which facilitated the shaping of ethnically homogenized socialist states.12 12 ╇With regards to Poland, ethnic cleansing took the form of the resettlement of hundreds of thousands of ethnic Poles, residents of those prewar territories



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Issues of nationalism directly lead to ideas that influence the current€ processes of constitution building in ECE. In Poland and elsewhere€ the dominant tradition was that of republicanism. Typically, the constitution’s opening norm, as in the case of Article I of Poland’s 1997 constitution, proclaims that the “Polish Republic represents the common good of all Polish citizens.” This article replaced the opening€of the old constitution of 1952 – amended in 1989 – which stated that the “Republic of Poland is a democratic state ruled by law and realizing the principle of social justice” (currently Article Two of the 1997 Polish Constitution). Additionally, in ECE, and certainly in Poland, republican ideas and the conception of the polity were emblemized by the political tradition of a “Republic of Nobles” with its stress on public virtues and on the responsibilities of all formally equal citizens (i.e., the nobility) for the Republic as a whole – ideas subsequently reflected in the country’s institutional structure (Walicki 1991). This stress on republican civic virtues was very much present in the constitution of the Second Republic, the March Constitution of 1921 (Skąpska 2000). In this tradition, the constitution should rather be defined as a “nation’s birth certificate.” In other words, it should be the institutional foundation of a modern republic grounded in the will of “the people” – the Rousseauian volonte generale – rather than a meta-norm for the “taming of despotism” in the “state governed by law.” This historical idea of the republican constitution appeals greatly to the nations which struggled for their political sovereignty in the 19th century, won it after World War I, and then lost it again. In their case, the process of modern nation-building and the formation of political sovereignty is as yet unfinished, as seen in the case of Slovakia, “a young nation and a young state” (Kusy 1999: 102) or, similarly, the Czech Republic after the “divorce.” In the case of the Czech Republic and Slovakia, the postcommunist constitutions reflect a process of separate nation consolidation. Elsewhere, as in the Baltic states of Estonia, Latvia, and Lithuania, new constitutions do not create these nations but do contribute to the formation of Latvians, Estonians, and Lithuanians as organized national polities, and to the consolidation of Â�incorporated into the Soviet Union as a result of the 1945 Yalta Treaty. In turn, these people were moved into the western lands acquired by Poland as an effect of the Potsdam Treaty that same year, replacing out-settled Germans; Ukrainians were also out-settled from Poland and Slovakia. Considerable resettlements were experienced within other states, notably between Romania and Hungary, and the most widely known case of Germany and Czechoslovakia.

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the respective nation-states – a process brutally interrupted after 1939. However, to some extent, other Central European nations are also experiencing a “rebirth” of sovereignty after 1989.13 There are also important other constitutional continuities. As has been stressed before, many of these new democracies refer back to their interwar constitutional history for arguments, concepts, and models. However, without heralding such, there is also a remarkable continuation of communist constitutionalism to be noted. This takes the form of the often criticized abundance of social rights in postcommunist constitutions, which comprises a distinctive and different feature when comparing the realistic, justifiable and democratic constitutions of the early twenties based on ideas of active citizenship with the constitutionalism of the 1990s. the semantic endowment of the new constitutions By way of concluding this brief discussion on recent constitutional history in East Central Europe, the importance and novelty of certain ideas should be noted once more. After all, key assets and liabilities had now created a social endowment with which these societies entered the process of building liberal-democratic constitutionalism and of forming a theory of society which would provide them with a semantic direction. One can summarize this chapter by an observation that the semantics of postcommunist constitutionalism reflect several opposite ideas and expectations of ECE societies. They would like to not differ from other liberal democracies – be “normal” as their citizens would say – yet they would like to preserve their own distinct identities. They wish to function as democratic, law-governed societies, yet have had their quite distinct experiences with Stalinist constitutionalism. Finally, they face entirely unique and demanding problems that are far from the regular tasks with which Western democratic governments usually need to deal. All of the above leads to a semantic chaos which is distinctive of postcommunist constitutionalism. The specific challenges of ╇One can add that this symbolic, nation-creating, and state-sovereignty declarative function of a constitution is seen as even more crucial in other parts of the world, e.g., in the new, postcolonial countries of Central Asia or Africa. The final stage of nation creation is considered to be the proclamation of state-sovereignty and the formation of a political entity composed of equal citizens – that is, a democratic state. 13



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transformation from Soviet communism do not make things easier for governments, constitutional lawyers, or citizens. In searching for and shaping their new identities, these societies retreat to some older ideas concerning political identities as well as the concept of a constitution and its interpretation under the auspices of the rule of law. These include the experiences of nations deprived of full political sovereignty for the greater part of their modern history – something which bears a considerable influence on the concepts of collective, political identity in these societies. Hence we see the accent on nation and national sovereignty, especially visible in the Polish and the Slovak constitutions. This already out of date constitutional symbolism is contradicted by provisions – present in all postcommunist constitutions in ECE – which secure the supremacy of international and supranational treaties and covenants over the internal state law. Both of these approaches: the “national” and the “European” are summarized in two slogans very popular at the time when the new constitutions were proclaimed. One declared “back to the past,” meaning back to the past when these nations were politically sovereign, while the other announced a “returning to Europe,” illustrating the popular convictions that East Central Europe is truly a part of Europe (denoting the Western part of the continent) and only due to the most unfortunate of political circumstances had found itself behind the “Iron Curtain.” The distinct experiences with Stalinist constitutionalism, with the “paper constitutions,” and with gross violations of human rights made the East Central European societies sensitive towards the rule of law. Not insignificant was also the international factor – the rather astonishing fear and apprehension on the part of Western Europe and the USA towards the democratic changes of the political leadership in ECE. Hence legality, as it was stressed in the previous parts of this book, was one of the most important mottos under which the “peaceful” and “self-limiting” revolutions were led. That resulted quite often in a narrow, literal interpretation of the existing law – the law which was to an overwhelming degree inherited from the former system. This interpretation, under the auspices of legal positivism, proved to be quite inadequate when applied to such complex matters as lustration and decommunization, but also restitution of property. In contrast, the concept of “transitional justice” or of a broader understanding of constitutional provisions based on the principles of fairness, justice, proportionality, and interpretation which would link

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the meaning of constitutional provisions with the particular experiences and the local knowledge of societies that had been subjected to terror was neither popular among constitutional justices in particular, nor lawyers in general. This was a great pity considering the novel ideas regarding how the constitution and the law impinged on the mundane experiences of people, their daily lives and private memories – ideas once formulated by the most prominent members of the civil society, those belonging to the democratic oppositions of Eastern and East Central Europe. Above all, the new ideas weighed on the private memories of human rights violations and the omnipresent control of the police state. Such experiences became expressed in the concepts of living within the truth, anti-politics, and a parallel polis; all of them referred to a public sphere theorized in the classic, Aristotelian sense. This concept of the public sphere was meaningfully supplemented by a comprehension of anti-politics that referred to authenticity and independence as a trait of human existence within a politically organized society. In turn, these novel concepts and ideas provided the material for a cognitive frame and lens through which the dawning social and political reality could be perceived. They could also be used to interpret fundamental constitutional principles and provisions, imparting them with a meaning compatible with the experiences and expectations of the people involved, instead of purely technical and literal interpretations of a constitution. The most salient is the concept of the rule of law, or again in the Central European tradition, of the law-governed state. Equally, if not even more important, is the constitutional principle of human dignity protection and the very extensive human rights protection, typical of all postcommunist constitutions. Therefore one can observe another tension between the narrow conceptualization of the constitution as an instrument of governance, and a broad one which refers to general and open-ended provisions, and links the constitution to a dignified existence for the citizen within a polity composed of human beings endowed with their inalienable rights. Moreover, the semantic capital or endowment – especially that associated with the conceptualization and interpretation of the rule of law provision – with which the Eastern European civil society entered into democratic constitutionalism was enriched by the idea that the rule of law should have not only “authentic” and “existential,” but also historical aspects. It should be rooted in experiences and the “local



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knowledge” of those who were subordinated to the functioning of the police state, who were deprived of property, and who were blackmailed and persecuted, but who had to somehow adapt to the conditions in which they found themselves. In other words, such concepts as “living within the truth,” especially combined with the “human dignity protection” provision, bear great potential in bringing the “law-governed state” interpretation closer to the significant histories of the society in which it is applied, as well as to the conceptualization of civil society as an ethical entity. Hence, the ethics of civil society and the existence of society under the totalitarian regime comprise a profound justification for the law-governed state and its semantic steering. As I will try to demonstrate in the next chapter of this book, the idea of “living within the truth” proves crucial in the interpretation of the law-governed state provision when governments have to deal with a past of human rights violations. This idea could also be construed in such a way as to create a buffer zone beyond the discretion of the political authorities. Furthermore, this is inherent in historical democratic traditions and/or an axiology of human rights protection rooted in the social experience of their violation. All of the above diverges from a formal, abstract, and technical conceptualization of the rule of law. Therefore, postcommunist constitutionalism is distinguished by yet another important tension. Aside from that existing between “nationalism” and “Europeism,” and that existing between a literal interpretation of constitutional provisions in the spirit of legal positivism, and a broad one linking the semantics of constitutional provisions to openended provisions that have a deep philosophical and moral underpinning, there is the tension between the actual, timeless interpretation of the constitution, and the interpretation which appeals to the historical experiences of civil society and citizenship in ECE. A brief analysis of the liabilities with which Eastern European societies entered the process of transformation indicates the negative potentials, the discrepancies between these concepts of the rule of law, civil society, and authenticity, and the actual experiences with the application of law in communist and postcommunist societies. This incongruity, in light of my arguments, is also a consequence of the fact that the very debates on the law, legality, the rule of law, and human right protection reflect an Eastern European syndrome. It echoes the structural divisions within these societies: the divisions between the “haves” of some substantial and intellectual capital, and the “haves nots” excluded from the public debate for centuries. All of the above renders

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an assessment of the moral nature of the transformation, and its effects€on those “have nots” who could not actively participate in the initial round table agreements, even sharper. Evaluations of the outcomes of the round tables, as well as of those who sat before them, could reflect older as well as newer divisions and exclusions from public debate.

Chapter Four

Settling Accounts with the Past and the Dilemmas of the Law-Governed State* As has been illustrated, postcommunist constitutions are “fear creatures” ; they reflect”… the fears originating in, and related to, the previous political regime” (Sajo 1999: 2). These phobias are most clearly mirrored in constitutional provisions which forbid torture or cruel and humiliating treatment or punishment, arbitrary stripping of one’s citizenship by state authorities, the extradition of citizens, compulsory work, the subjecting of humans to scientific experiments, and/or forced psychological examinations of imprisoned persons.1

*╇ The empirical part of this chapter, devoted to the restitution of private property, is based on comparative research on reprivatization in Poland and Germany, and on my previous research on the nationalization of property in Poland. The part on nationalization was published in 1999 (Skąpska 1999: 73–101), and on restitution of property in 2005 (Skąpska 2005: 211–235). In the present chapter, the data on Poland has been supplemented by data on Hungary and the Czech Republic. Invaluable in my analysis was Istvan Pogany’s book Righting Wrongs in Eastern Europe (Pogany 1997). 1 ╇ These particular provisions are present in all the analyzed constitutions. The Constitution of the Czech Republic declares that acquisition and loss of citizenship of the Czech Republic should be governed by law” (Art. 12. 1), and that “Nobody may be deprived of his or her citizenship against his or her will (Art. 12. 2). The Czech Charter of Fundamental Rights and Freedoms declares in Art. 3. 2 that, “Everybody has the right to a free choice of nationality. Any form of influencing this choice is prohibited, just as any form of pressure aimed at suppressing one’s national identity.” In this Charter one can read that “Nobody may be subjected to forced labor or service” (Art. 9. 1). The Constitution of the Slovak Republic stipulates that “Conditions for the acquisition and loss of citizenship of the Slovak Republic are determined by law (Art. 5. 1). No one can lose citizenship of the Slovak Republic against his will. Furthermore, this constitution stipulates that, “Everyone has the right to freely decide on his nationality. Any influence on this decision and form of pressure aimed at assimilation are forbidden.” Art. 17 of the Slovak Constitution stipulates that, “The mental state of a person accused of criminal activity can be examined only on the basis of the court’s written order” and Art. 18. 1 declares that, “No one must be subjected to forced labor or services.” The Hungarian Constitution, in Art. 58.1, stipulates that “Everyone legally staying or residing in the territory of the Republic of Hungary – with the exception of the cases established by law –has the right to move freely and to choose his place of residence, including to leave his domicile or the country. Furthermore, according to Art. 59. 1 and 59. 2, “In the Republic of Hungary no one should be denied of his Hungarian citizenship against his will and no Hungarian citizen may be expelled from the territory of the

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Trepidation is also expressed in provisions protecting democracy.2 As an antidote to Stalinism, the constitutions in East Central Europe refer to the famous slogan “Never again!” They evoke an obligation to face past human rights abuse and promote “the most basic hope” (Ignatieff 2001) that the particular moments of horror in these societies€ will be recorded and adjudicated and that specific wrongs will be redressed. In the opinion of Czarnota, “The problem of settling accounts€with the communist past in postcommunist societies is constitutive for these societies. (…) The different approaches to the problem have had an impact on the form and structure of new regimes in the region” (Czarnota 2005: 124). The attitude towards the past continues to lurk in the shadows of doubt. How should states deal with such individuals as the then Hungarian Prime Minister Gyula Horn who was involved in the crushing of the Budapest uprising in 1956, or General Jaruzelski who imposed Martial Law in Poland in 1981, crushing the Solidarność movement, yet became president of the new state in 1989. One has to reckon with the past legacies and expose the truth about the former regime functioning in order to be faithful to the new moral standards, and to denounce

Republic of Hungary. Hungarian citizens may always return to Hungary from abroad. According to Art. 70B. 1 of this constitution, “In the Republic of Hungary everyone has the right to work and to freely choose his job and profession.” In the same vein, the Polish constitution declares that, “A Polish citizen should not lose Polish citizenship except by renunciation thereof (Art. 34. 2). According to Art. 52, “Freedom of movement as well as the choice of place of residence and sojourn within the territory of the Republic of Poland should be ensured to everyone” (1). “Everyone may freely leave the territory of the Republic of Poland” (2). “A Polish citizen may not be expelled from the country nor forbidden to return to it” (3). Art. 65. 1 of the Constitution of the Republic of Poland stipulates that, “Everyone should have the freedom to choose and to pursue his occupation and to choose his place of work. Exceptions should be specified by statute.” 2 ╇ According to Art. 9. 2 of the Constitution of the Czech Republic, “The substantive requisites of the democratic, law abiding state may not be amended,” and “Interpretation of legal rules may not be used as an authorization to eliminate or imperil the foundations of the democratic state.” The Hungarian Constitution stipulates that “No activity of any person may be directed at the forcible acquisition or exercise of public power, nor at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as permitted by law.” The Constitution of the Republic of Poland declares that “Political parties and other organizations whose programs are based upon totalitarian methods and modes of activity of Nazism, fascism and communism, as well as whose programs or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide secrecy to their own structure or membership, should be forbidden” (Art. 13).



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hypocrisy and crimes; one aims to disclose local social experiences with deprivation and fear, acts of cowardice or cynical opportunism, as well as acts of heroism in order to contribute to the reshaping of a constitutional community out of a postcommunist society. Postcommunist constitutionalism reflects fears, but also generates important potential directly connected to the experiences of people living under a totalitarian regime. Due to their social experiences with human rights violation and because of the moral capital with which postcommunist societies began their transformation, a chance appears to contribute to the catalogue of human rights and to revise classic constitutional principles. At stake is the principle of the law-governed state, interpreted under conditions of mass-scale human rights violations committed by the former regime. As I have argued in the Introduction, this principle, coined in the 19th century, underwent great changes, because it was not initially envisioned as a device for dealing with human rights violations committed by the functionaries of a state and under its auspices. Moreover, there are great dilemmas and important ambiguities to reckon. They are inherited from the past and currently haunt postcommunist constitutionalism in ECE. One must also be aware of the fact that democracy is open and vulnerable: open to any organized interests, and therefore vulnerable because these could be anti-democratic and/or even represent those who played a crucial role in the functioning of the previous system. On the other hand, one has to acknowledge the fact that past reckoning brings much temptation to the new governments – a temptation to get rid of political opponents, if only one can find any evidence, however feeble, that they collaborated in the functioning of the former system. Therefore, it is important that the past-reckoning activities be subordinated to transparent procedures. These dilemmas and ambiguities comprise a danger turning postcommunist constitutionalism into a fiction – into an element of a hyper-reality legitimized in a fictitious constitutional consensus and very distant from the brutal reality of the postcommunist functioning of society. In order to present these pertinent constitutional, political, and social issues, the dilemmas and ambiguities of postcommunist constitutionalism, I will – after a brief outline of the constitutive potential of experiences with totalitarianism and dictatorship – debate the quite unique, structural, institutional, and cognitive legacies of the Stalinist past in ECE still haunting the postcommunist reconstruction. Next, model approaches to the past will be outlined briefly, followed by a

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presentation of the interpretive dilemmas of the law-governed state principle. Finally, the dangers of a fictive constitutionalism – an alienating constitutional justice – will be analyzed as the most critical bequest of Stalinism in this region. the constitutive potential of the difficult past: the right to truth, to remembrance, and to restitution of property rights as part of identity restoration Let us reflect on the constitutive potential of dealing with past human rights violation. A prominent lawyer, the Executive Director of the Inter-American Institute on Human Rights in Latin America argues that facing and reckoning past human rights abuse constitutes an obligation for new governments. They need to investigate, prosecute, and punish; they also need to disclose to the victims and society all that can be reliably discovered about the circumstances of such crimes, including the identity of the perpetrators and instigators. Such an obligation is translated into a society’s right to truth (Mendez 2009: 39).3 This right emerged in an age of gross violations of human rights, giving rise to high numbers of perpetrators, instigators and collaborators, and victims, and was formulated to deal with an unprecedented technical capacity of hiding the truth. Thus, the right to truth comprises a civic right of a new type, a response by a civic society to the increasing possibilities of concealing atrocities, destroying evidence, and silencing people – behavior typical of modern dictatorships and totalitarian regimes. As such, it is a most important contribution to interpretation of the law-governed state principle after the collapse of a totalitarian or dictatorial regime. The right to truth is based on a belief that the truth about the past, if disclosed and disseminated, brings both restitution of dignity to 3 ╇ The 1985/86 Annual Report of the Inter American Commission on Human Rights reads:

“Every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent a repetition of such acts in the future. Moreover, family members of the victims are entitled to information as to what happened to their relatives. Such access to truth presupposes freedom of speech, which of course should be exercised responsively” (as cited in Roth Arioza 1995: 28). According to authors who investigated the reckoning of the past in South America, the right to truth is prior to accountability (Roth Arioza 1995: 89).



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Â� victims and retribution for the past atrocities. In East Central Europe, such an obligation stems from the conviction that “living within the truth” is a crucial part of the moral capital with which these societies initiated their transformation towards democracy. If taken seriously, the right to truth serves as crucial guidance in the process of differentiation of the new political system from the previous one. Therefore, the truth about the past is constitutive for new democracies in both meanings debated in this book. It contributes to the restoration of victims’ dignity and the protection of their rights. Hence, it helps redirect postcommunist constitutionalism, and postcommunist law in general, towards the protection of civic rights. It also comprises an initial step in the process of public enlightenment, of public self-reflection, and also of differentiation from the past – an initial step in the construction of a new theory of society within society after the fall of a regime. Moreover, the right to truth represents a specific form of the broader civic right to information enshrined in every democratic-liberal constitution. Further, the right to truth is directly and imminently connected with another one: the right to remembrance and to present one’s personal history, contributing to the collective memory. The right to remembrance places democratic governments under an obligation to document the particular experiences of individuals and broaden the official version of national history by incorporating the local ones. Wrongs must be documented, evidence collected, and the “white spots” of a nation’s history filled in order to render the collective memory more democratic and, above all, include the memories of victims. Partly in order to fulfill this responsibility, new “institutes of national remembrance,” or similar institutions, have been established by the postcommunist governments of ECE. If protected, these rights to truth and to remembrance contribute to the process which could be labeled “public enlightenment” and comprise a first step towards the formation of constitutional consensus. The principle of the law-governed state also imposes upon new governments an obligation to restore rights to property or compensate for its loss. This duty results from constitutional principles aimed at the protection of private property rights. Moreover, in the reality of postcommunist society, the right to property restitution – as in the restitution of the property rights of Aboriginal peoples in Australia or New Zealand, and of native peoples in the Americas or Africa – is directly linked to the restoration of autonomy and the identity of individuals and collectivities.

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Thus, the legacy of the nationalization and confiscation of private property represents yet another, pertinent constitutional issue. Restitution of nationalized property is meaningful for societies in East Central Europe. On an individual level, in many difficult cases the issue of restitution is linked to the very concept of full citizenship, human rights, and human dignity. On the collective level, it is closely related to the reestablishment of ethnic, religious, and national identities. This bears an important human aspect, comprising a deeply sensitive issue for individuals and society as well. It is also intricately linked to the overall restoration of rights to victims of tyranny. Last but not least, restitution of property or fair compensation for losses facilitates the transformation of state-dependant subjects into free market economy owners who can make economic use of regained property. However, legal and economic dilemmas do arise. The first is associated with the fact that the property subject to restitution was nationalized by legitimate governments, i.e., those internationally recognized at the time of its nationalization. The second is associated with the costs of restitution. Thus, property restitution is mired in the predicaments of weighing legally and economically bound reasoning versus moral considerations focused on the protection of human dignity, empathy towards political victims, and the fulfillment of a promise to respect the “higher law” on which the legitimization of the transformation is based. In East Central Europe these issues are of still greater significance since the societies whose moral bonds were destroyed during the last half of the 20th century are experiencing a lack of moral justifications and discursive resources with which to face the challenges incurred by the regime change. Restitution of nationalized or confiscated property offers such potential for the revitalization of a “moral impulse” key in social reconstruction. It makes people consider and discuss moral issues and think about the victims as well as about the public good as justification for the constitutional principle of the law-governed state. Last but not least, there are burning political issues: strong interests on both sides, but especially on the side of the opponents of restitution, or the protection of the right to truth, or to remembrance. Interestingly enough, it is the civil society whose struggles against policies of past concealment contribute to this process of public enlightenment and large-scale public learning, thus guaranteeing protection€of€the right to truth and to remembrance. As already witnessed during global processes of reckoning with the past, the quantum of



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victimization has seldom been exposed by governmental or international bodies (Bassiouni 1996: 11). Likewise in Eastern Europe that task has primarily been undertaken, with all its understandable limitations, by NGOs such as Charter 77 in Czechoslovakia, or the Committee for the Defense of Workers of the late 1970s and early 1980s in Poland, or the Memorial organization in Russia thanks to which we learn about atrocities committed by the USSR. There are also organizations of victims of the tyrannical regimes, of slaves condemned to work in Siberian or other labor camps, of owners deprived of their property, of mothers, of dedicated journalists, and of committed researchers struggling to expose the truth and not forget it. In order to protect the right to truth in ECE, it was civic society and journalists who alarmed public opinion at the beginning of 1990s about the destruction of files and archives of the security police and the communist party, undertaken by members of these institutions under the express orders of high ranking officials (Paczkowski 1999: 49).4 In the end, it was civil society that, at least in Poland, has consistently since 1993 (as seen in public opinion polls) demanded opening of the files and accessibility for all interested parties.5 With respect to the nationalization or confiscation of property of individuals, communities, or organizations, the engagement of civil society, again in Poland, have proved crucial in the struggle for restitution.6 The new governments are further obliged to the ratified European Convention on Human Rights and Fundamental Freedoms of 1950, 4 ╇ As noted with respect to Poland, initially nobody seemed interested in opening the files and disseminating the information – neither members of the former regime, nor the new officials, members of the former underground opposition (Paczkowski 1999: 51). 5 ╇ According to historians, the destruction of documents and files in Poland started in September/October 1989. Furthermore, in October 1989, General Jaruzelski ordered the destruction of records of Central Committee meetings between 1982–1989. This destruction of files and documents took several months (Paczkowski 1999: 52, 53). In Poland and elsewhere, public opinion was often warned about this process by local media, thanks to information from citizens. Aside from their obliteration, files were removed by persons working in specific institutions and used for “private collections” as hidden political bombs. 6 ╇ The engagement of civil society in property rights restitution is well illustrated by the Polish case. Many organizations of former owners – such as of Lemkos or landowners resettled to Poland from Lithuania, Belarus, or the Ukraine after World War II – played crucial roles in the struggle for restitution or fair compensation. They were active in the presentation of cases, contacts with governments, lobbying, representing owners before the courts, and the preparation of complaints to be presented before the European Tribunal of Human Rights (Skąpska 2002: 42).

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not to mention the Universal Declaration of Human Rights of 1948; these and other covenants comprise part of the postcommunist constitutional and legal orders. Among other things, according to these agreements, full information about past human rights abuse must be disclosed.7 With respect to restitution of property rights, East Central Europe finds itself under the constant pressure of foreign states, notably, but not uniquely, of the United States House of Representatives.8 Moreover, restitution of property rights is an important issue in the adjudication of the European Court of Human Rights in Strasburg, as well as of the United Nations Human Rights Committee. Verdicts and decisions by these bodies are of great relevance in the implementation of the binding law-governed state principle. Dealing with past human rights abuse attests to the sincerity of the early slogan, “never again.” It generates hidden, cognitive, and axiological resources that would assist postcommunist societies in restoring their integrity. From the classic sociological, Durkheimian perspective, revealing the truth about crimes and, above all, punishing the perpetrators and instigators potentially contributes to the reinstatement of basic social values (Osiel 1997). Above all, the very notion of the law-governed state, as well as legal concepts of crime, punishment, human rights, human dignity, perpetrators and victims, restitution and compensation function as crucial components of constitutional semantics. Therefore, dealing with the past links the meanings of constitutional provisions to those ascribed to them by their addressees. It furthermore appeals to the set of resources already available in a given society: to the hidden, cultural and moral resources that would assist post-totalitarian societies in restoring their integrity and internal bonds. Being a constituent element of a community bound by shared meanings of constitutional concepts, confronting the past also performs a creative and performative function. In the case of property rights restitution, dealing with the past means not only honoring the

7 ╇ All new East Central European constitutions refer to international law as part of the internal legal order and indeed refer to its priority over internal law. See the appropriate note in Chapter One of this volume. 8 ╇ See Commission on Security and Cooperation in Europe, Testimony from the Hearing on “The Long Road Home: Struggling for Property Rights in Postcommunist Europe” (http: //www. house. gov/csce). This testimony and the U.N. Human Rights Committee decisions are of interest to the U.S. House of Representatives and are manifest, too, in American Senate resolutions (http: //www. restitution. org/us/scr73 .96027. htm).



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constitutional principle of private property protection. It means, too, the recognition of individual property rights as civic rights, and of collective property rights (e.g., of associations, churches, municipalities, charities, or minorities) as the foundation of their autonomy as well as of their cultural or ethnic identity. Hence, the protection and restitution of property rights evokes – again in the classic Durkheimian sense – the recognition of social pluralism in a liberal democratic society. Summing up, in light of the first argument of this chapter, settling accounts with past human rights violations has a differentiating and structurating effect on postcommunist constitutionalism. It represents a first step in the process of distinguishing the new constitutional order from the previous one and is constitutive for a community united by common understanding of its fundamental concepts and principles.€If subordinated to the law-governed state principle, it also brings about the legalization of approaches toward the past, i.e.the subordination of reckoning with the past to specific concepts, principles, and procedures of which the general principle of the law-governed state is built. This principle means the judicialization of a handling of the past, i.e., subjecting it to professional decision-making in appropriate courts. As a consequence, dealing with past human rights violations under the principle of the law-governed state imposes legal definitions and reasoning on real-life situations, and subordinates social and political actions to legal procedures. Thus, it fulfills the promise of legality, so important at the beginning of a historical change. Moreover, it testifies to the sincerity of the high moral standards with which the East Central European societies started their transformation: the living within the truth. However, in light of the second argument, settling accounts with the past concurrently introduces a serious challenge to the constitutional principle of the law-governed state. Moreover, this principle is used and misused by proponents and opponents of the reckoning with the past and opening of the files (Barańska 2007: 112). First and foremost, not all cases of human rights violation were punishable under the then-valid law. Obviously, collaboration with the former regime – internationally recognized as legal – or with its secret police was not punishable at all. Therefore governments which undertook the task of seriously dealing with the past found themselves forced to reach beyond a literal understanding of the law-governed state principle. They needed to bring in some ingenious methods for defining crimes

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and their punishment in a process known as decommunization and/or lustration, i.e., of cleansing the public sector of high ranking officials of the previous regime and of people tainted by collaboration with its policing organs. These methods came to be known as transitory justice (Teitel 2002). However, because of the often complex and unclear nature of the cases, as well as of the evidence itself, when free access to the files is limited such methods easily turn into weapons in political€ struggles: they are used to compromise political opponents. Furthermore, in the case of the nationalization of property, i.e., violation of property rights, restitution necessitates economic sacrifice on the part of the current democratic society and its government which has to compensate the losses, reprivatize public property, and find legal solutions to often unsolvable problems. Yet restitution of nationalized property bears important meaning for East Central Europe societies. As mentioned earlier, in many difficult cases the issue of restitution is linked to the very concept of full citizenship, human rights, and human dignity. In collective terms, the issue of restitution is closely linked to the reestablishment of ethnic, religious, and national identities. Thus, the legal dilemma has an important human aspect and restitution of property presents a deeply sensitive issue for individuals and society as a whole. This is a dilemma of economically and legally bound reasoning versus moral considerations focused on human dignity protection and empathy towards political victims. As an outcome, dealing with past human rights violations contributes to the ambiguities of transformation. It presents an unavoidable challenge to postcommunist constitutionalism: either it culminates in the questioning of the law-governed state principle, at least in its most obvious, direct meaning, or it leads to reproduction of constitutional fiction and hypocrisy. two legacies of stalinist totalitarianism The first legacy involves criminal acts committed by the state. Debates about “dealing with the past” are usually focused on breaches of human rights committed by functionaries of the former regime, their collaborators, and instigators of such crimes in the domain of criminal law. The contemporary deliberations refer directly to the constitutional principle of the rule of law or law-governed state, along with other constitutional guarantees that the law will be protected.



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Legacies of violations of human rights encompass kangaroo courts, imprisonment, torture, and death sentences as well as kidnapping and deportation to gulags or killing of political opponents. The object of this persecution was persons defined as “enemies within” or sometimes also labeled “traitors to the nation.” The vast literature worldwide is devoted to so-called state and/or court crimes and their political effects after these are made public and debated. Initial arguments calling for the recording and adjudicating of the horrors usually refer precisely to the state crime legacies of dictatorial regimes. A significant consequence of dictatorial and totalitarian regimes is the moral devastation of societies in which many – willingly or not – collaborated with the oppressive regimes by spying and denouncing. Therefore, the new governments have to, in first order, deal with often unclear cases of collaboration. The other important legacy of the past which the new democracies in East Central Europe face and which is decisive in the rather unique character of their transformation involves the nationalization of private property. Most meaningful here is the history of expropriation and confiscation of private property belonging to “class enemies” (also known as “state enemies,” “traitors to the nation,” and/or “suspect nationalities” ). This situation is quite specific to postcommunist societies because of the fact that this type of nationalization was a leading mission for the regimes installed across the region after World War II. As has been emphasized, property rights comprise a core category of Stalinist constitutionalism; the “theory of socialist ownership” was modeled after Marx’s theory as well as Lenin’s doctrine and Soviet institutions in general. In Poland, its fundamental legislative expressions could be found in the 1952 Constitution of the People’s Republic of Poland and in the 1964 Civil Code. In other East Central European countries, similar provisions were also implemented by the first, Stalinist constitutions and subsequent statutes. The restitution of property rights is thus another important indicator of a new government’s will to redress past human rights abuses and compensate for losses, to reestablish trust in government and law, and to involve victims in the process of social reconstruction. Whereas procedures aimed at reckoning with the criminal past are focused primarily on instigators and perpetrators, compensation for injuries to human beings and the restitution of property rights are procedures predominantly focused on victims.

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In both cases the legal, political, and economic remnants of the past present a serious challenge for the new governments. They have to change the law to declare which of the crimes can still be punished and which wrongs redressed. They have to deal with the prominent members of the old regime; many of these persons had participated in the deals struck at the round tables and have vested interests in presenting their own version of history and the “truth.” The states further face the enormous financial costs of righting wrongs. There are also other pertinent social legacies to be considered: the mutual entanglements of the vast numbers of victims and perpetrators as well as the very recent and still fresh memories of human rights violations, of cowardice, and of heroism. The budding democracies have to deal with social traumas alongside often conflicting experiences with totalitarianism. There are still other legacies, crucial to the current efforts to redress wrongs and compensate for losses – among them, the vast displacements and deportations of large numbers of people in Eastern and East Central Europe. These relocations comprise an important context€for the present efforts to establish constitutionalism based on the law-governed state principle and sometimes – as, for instance, the so-called Benes decree expulsions in Czechoslovakia – they arouse heated debate on law-governed state protection in the contemporary Czech Republic.9 Deportations started during the Second World War as a key element in Nazi policies across the region and were ultimately continued afterward by the newly installed communist governments. These forced movements of people comprised a very serious infringement of fundamental human rights. During the war, these included, above all, deportations of European Jews to extermination camps, the deportations and displacements of Poles in the German and Soviet occupied territories, and the deportations of Czechs from the Sudeten territories to Bohemia.

9 ╇ The confiscation of German-owned land in Czechoslovakia after 1945 was conducted on the basis of a decree issued by then Czechoslovak President Vaclav Benes. The land was defined as “enemy-owned land” and applied to the German minority, as well as to land owned by ethnic Hungarians or Czechs who were deemed “traitors and enemies to the Republic.” That land was subject to confiscation without any compensation and with immediate effect for the purposes of the land reform (as cited in Pogany 1997: 43).



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This policy of displacement continued after 1945, marked principally by the expulsion of ethnic Germans endorsed by the Allied Powers at Potsdam – the decision to transfer out the German populations (or elements thereof) remaining in Poland, Czechoslovakia, and Hungary. To this purpose the Allied Control Council endorsed a plan in November 1945 which envisaged the “wholesale removal from Poland to Germany of the entire German population” which policy was supplemented by the unilateral efforts of governments to get rid of ethnic Germans (Pogany 1997: 116, 117). That was followed by other resettlements and deportations of Hungarians from Slovakia and the Czech lands to Hungary, Czechs and Slovaks from Hungary to Czechoslovakia, and the so-called exchange of ethnic minorities between the USSR and Poland and their respective transfers. Significant here is the case of the Ukrainians who had been living in southeastern Poland for generations but were now forced to leave for the Soviet Ukraine as the result of a treaty between Poland and the USSR, or, at best, were forced out of their traditional homelands and dispersed across Poland. Especially tragic is the case of the ethnic minority of Lemkos (known also as CarpathoRuthenians) who were seen as Ukrainians and defined as traitors to the Polish nation – as such they also became subject to a severe policy of displacement. Aside from all other claims of property rights violations, these compulsory migrations pose the most difficult question for property restitution because, in all such cases, those moved had to leave their real estate behind. If any compensation for the left property was at stake – and the ethnic Germans, Ukrainians, and Lemkos were entirely and unquestionably excluded from this in Poland – it never reflected the actual value of what had been forsaken. Moreover, in many cases, the geopolitical changes after the Second World War, and then again after 1989, have contributed vastly to the complexity of the task of restitution. As a result of World War II, some countries lost territories but also gained new ones. After 1945, hundreds of thousands of citizens did not return due to fear of the communist authorities backed by the Soviet army and security police whose cruelty had been experienced all too well during World War II, or because they did not want to return to the lands on which the Shoah was committed, or because they were met with hostility. The geopolitical changes after 1989, especially the dissolution of the former USSR, led to the formation of new states – including Lithuania, Latvia and Estonia, Ukraine, and Belarus. There were also “velvet divorces” and

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the unification of Germany. These new states, rather understandably,€ do€ not feel responsible for crimes committed or dictated by the Soviet Union. The installation of communism meant the nationalization of all property: private and communal (e.g., belonging to civic organizations and churches). Concurrent was the nationalization of banks and insurance companies, accompanied by the just mentioned expropriations of whole nations. It is worth noting that these processes of nationalization often legitimized expropriations carried out by the Germans earlier during the war itself, or those undertaken by the indigenous pro-Nazi governments in countries which were not hostile to or had directly collaborated with the III Reich.10 The end of World War II led to further displacements because of those fleeing from the new communist states or simply not returning from the West. The Shoah turned East Central Europe, especially the Polish territory, into a cemetery of the European Jews. In most cases, their immovable property was nationalized and the movable was destroyed, requisitioned, or stolen. Because of the sheer scope and number of possible claims, restitution of nationalized property is enormously costly. In fact, in several countries the costs of restitution are either not debated at all, or estimates vary so greatly that any public debate on them is futile. Apart from the costs, the restitution of property represents a complex and multidimensional dilemma. This is the quandary of the economic burden versus a social sense of justice and trust in the new governments. And yet it is the indicator of a will to establish liberal democratic constitutionalism, to protect property rights, and to fairly compensate for losses. Furthermore, the new governments must also deal with the vested interests of various social actors: the former owners, victims of nationalization and confiscations, and the new owners. They have to consider other extremely complex matters in deciding what belongs to whom and how the losses should be compensated. They have to consider this part of an unspoken but fairly popular consensus that consists of accepting the fact that something which had belonged to a specific owner – be it a private person, company, church, municipality, or civic association – now, as “national property,” belongs to everybody or, as state property, could be very cheaply used by everybody. 10 ╇ There were several arguments used to legitimize nationalizations. One of them was the long-awaited land reform, another was modernization, and still another referred to social justice.



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Finally, the new governments which try to reckon with past human€rights violations, to punish the perpetrators and their collaborators, and to cleanse the state structures of persons tainted by colÂ� laboration with the former regime need to also deal with discursive practices€used in order to legitimize imprisonments, torture, or death sentences. Briefly, they have to deal with the legacies of a particular semantics – particular concepts used by the previous regimes, the semantic instruments with important social consequences: structural and cognitive. structural and mental legacies of the semantics used to legitimize state crimes In the already quoted essay on the power of the powerless, Vaclav Havel€describes the behavior of a greengrocer in Prague – sometime in€ the late 1970s or early 1980s – repetitively participating in the Â�superficial and meaningless rituals connected with the May Day celebrations in a Soviet Bloc country: decorating his shop in red, displaying portraits of communist leaders, etc. The case of that greengrocer presents a good framework for a debate on the peculiar societal and semantic aspects of Stalinism and late Stalinism – one important in the current efforts to face past human rights abuses, reveal the truth, punish perpetrators, redress wrongs, and install the rule of law-governed state. According to Jacek Kurczewski, the constitutive feature of Stalinism is the maximization of domination and control concurrent with the minimization of costs (Kurczewski 1991: 2). Others who have discussed Stalinism in societies in which that system was developed stressed the same peculiar feature: its extreme utilitarianism and complete neglect of moral norms and values. The latter was replaced by costbenefit calculation and efficiency in reaching the goals of the system (Sinjavskij 1991). Maximum control with minimum costs could be achieved by terror, by education, and, above all, by installation of an omnipresent Panopticon. Especially this would expand inexpensive control over society as it broadened societal power relations. On the one hand, spying was considered a socialist citizen’s civic duty; on the other, not spying was a crime. In the Polish, so-called “small” penal code of 1946, not reporting knowledge that a family member, friend, or neighbor has

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revealed a state secret, hidden a weapon, participated in an attack on a policeman, or helped an underground organization was a criminal act. The duty to spy and report on others applied to a son reporting on his father, a wife on her husband, or a brother on his brother. In that way this code renounced the principles of close human bonds respected in the entire civilized world. The penalty for not reporting was up to five years of imprisonment (Klaus 1999: 26). Similar regulations were introduced in all new communist countries after 1945. One must also stress that he who spies exercises considerable, often limitless control and power over his subject: a colleague, neighbor, friend, or member of the family. A prominent Polish philosopher – who herself spent many years in a gulag in Siberia – describes Stalinism, among others, as the paradise of mediocre people, and the functioning of the Stalinist system as based on a circularity of power between the highest and lowest echelons of society (Skarga 1991: 5). Hence, she points directly to the circulation of power and control as two of Stalinism’s main traits. There are also other legacies of Stalinism significant in the current process of social reconstruction and implementation of the law-governed state concept. The most crucial of them are the legal concepts used by that political regime to legitimize omnipresent spying and collaboration. An outcome has been a complex network of ambiguous social relations emerging within which, in many cases, it becomes almost impossible to clearly and undoubtedly differentiate the victims from the perpetrators, as well as to assess the level of guilt. These are the structural consequences of the specific semantics of that system. In analyses of totalitarianism, especially of Nazi totalitarianism and genocide, it is “otherness” and distance which are stressed. If the enemy was defined as the “Other,” then a process of distancing from that enemy and his exclusion was possible. In discussions on the Holocaust it is stressed that this event was preceded by a complex habitual and cognitive process, imposed and directed by the government in the Third Reich. It consisted of the de-individualization and dehumanization of Jews because of their perceived collective characteristics as “Others” and descriptions as inhuman or even anti-human: as the Gegen-Menschen, Anti-Menschen, and Anti-Rasse. To this was added the spatial and social distancing, the ghettoization of those who were to disappear from neighborhoods, offices, businesses, associations, theaters, streetcars, and parks. This was a crucial step towards



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their ultimate deportation to death camps in faraway places where no one knew any of them nor spoke their languages. Another telling example of distancing as a step toward human rights abuse is the case of apartheid in South Africa. In contrast, the next distinguishing feature of Stalinism consisted in the intimacy between victims and perpetrators, their physical proximity and mutual involvement in complex relationships. The functioning of Stalinism was characterized by a deep penetration into the private€ lives of people via closely-knit relationships between system functionaries of the lower echelons of hierarchy and the rest of society.€Functionaries were often living in nearby neighborhoods or even in the same apartments – so called communal apartments in which several families shared the same kitchen and bathroom; they were classmates at the universities, colleagues in the workplaces, and even family members. In the words of another witness, Stalinism engraved ruts in which life runs. Such ruts ran deep in society; they penetrated the walls of private houses and of spontaneous, informal social circles. It was not a world that consisted only of police terror situated outside society. It was formed from within society, too, thanks to the mechanisms of social accommodation and control (Świda-Ziemba 1991: 18, 23, 26–43). In the Stalinist system – after the first years of the “dictatorship of the proletariat” aimed at annihilating the bourgeoisie and characterized by “wanton and even random brutality” (Pogany 1997: 3) – the enemy was not predominantly perceived as an “other” unless he or she was additionally defined as an earlier-mentioned “traitor to the nation,” “class enemy” (owners of the means of production or peasants who did not want to collectivize their farms), or “suspect nationality” (mostly ethnic minorities). In addition to these, any friend, close relative or close family member could turn out to be an enemy – the “enemy within” who was inconspicuously living among us. If his or her behavior questioned the official ideology or its current interpretation in the slightest way, or if he or she was in any way threatening the system’s functioning or simply not conforming to its rules, the person was an enemy. Thus, severely punished crimes committed by such “enemies within” could entail telling jokes, spreading information about the system (known as “whisper propaganda” in the penal laws), selling anything on the black market, or even wearing fashionable Western clothing or hairstyles. The penalties for such petty crimes included

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imprisonment, or hard labor in often militarized camps.11 Typically, many such “crimes” – defined in the first decrees issued during the years of terror after 1945 – were later incorporated in the regular penal codes valid until the early 1990s.12 Very clearly the functioning system could only learn of such crimes through spying, peeping, and eavesdropping exercised in close social settings. In colloquial language this was phrased in the warning that “the walls have ears.” Aside from penal law, the Stalinist and late Stalinist governments had a plethora of persecution possibilities at their disposal: from deprivation of passports or of a university education to installing a security police family in one’s own apartment, to the loss of one’s job. Therefore, in order not to be accused of being “enemies within,” people participated in sham elections, faked enthusiasm during demonstrations, became members (sometimes unawares) of mass organizations of women, pioneers, or associations of friends of the Soviet Union. These were ordinary people – neither great victims, nor great perpetrators. Others denounced their friends and relatives and spied on them to maintain close relationships with system authorities, to win some gratification, and maybe also to have a feeling of exercising power over close persons. Still others decided to advance a professional career at all costs, while others (presumably not small numbers) were made to collaborate because they were blackmailed by the authorities – believing, for instance, that they were protecting not only their lives but those of their families. Likely considerable yet unknown numbers were forced to collaborate under threat of torture or, later, of losing a job or career. The authorities, on the other hand, made great efforts to involve the greatest possible numbers in collaborating with the functioning of the Stalinist system, to spy and denounce. Next to blackmail or open threat, they used all possible forms of gratifications because everything – apartments, good jobs, better food or a car, the possibility of a career 11 ╇ The penalties for such things as having American dollars, selling goods on the black market, telling jokes, listening to foreign broadcasting stations and spreading news (defined as crimes against world peace!) were extremely severe – up to 15 years imprisonment. Penalized was also wearing fashionable clothes (see Ziemba 1991: 159ff). 12 ╇ As Ziemba observes, after Stalin’s death and the “thaw” in 1956 in Poland, the most significant features of the Stalinist legal system were not changed. Many were incorporated into the new penal code, and the regulations concerning political crimes still binding in 1989 were not less severe than before 1956 (Ziemba 1991: 159). In other countries the same penal policies were typical and the primary elements of Stalinist penal law were preserved in the new codes.



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(including an artistic or academic one) – was in their hands. Hence the vast majority of collaborators but also victims involved in the mutual, complex networks and relationships comprise an important legacy of the Stalinist system and an important challenge to postcommunist efforts of coping with the past human rights abuse. Key to this is the lack of clear divisions or clear moral evaluations – something which further contributes to the structural, cognitive, and axiological ambiguity. Hence another reason for a hesitance in dealing with past human rights abuses associated with spying and collaborating with the totalitarian system lie in a hesitance to expose the hypocrisy and cowardice of friends and family members, too, because it would mean challenging important social bonds. There is also the place – mental and purely geographical – of detention camps, defined as correction or labor camps. The Stalinist system took its terrible toll: the number of mortalities in those camps reached tens of millions of mostly fellow citizens, even if these places were not designated as death camps. The attrition was the result not only of executions, but also because of hunger and enslavement, forced labor – used as a cheap means of modernization (Applebaum 2003, Polish edition 2005: 383–436). Thus, the aim of such labor camps was to help the “enemies within” transform themselves into useful pawns – if they did not pass away before their sentence ended. The camps were located in faraway places (quite possible in such a vast country as the USSR), but also on the outskirts of cities, in close vicinity to farms, schools, hospitals, or universities. Their inmates mingled with people outside the camps in everyday encounters.13 To these characteristics of Stalinism one should add that as many as 124 concentration camps were established throughout Czechoslovakia by the communists. As Istvan Pogany rightly observes, the establishment of communism in that country was particularly tragic as the establishment of democratic institutions in interwar Czechoslovakia had been far more successful than in any other Eastern European country (Pogany 1997: 136). In Hungary levels of Stalinist terror are assessed as having been extreme, more severe than in the others. There was a personal factor involved, too: the extent and severity of the violation of

13 ╇ The prisoners were often working in the same factories with regular employees, but were subjected to different working regulations (longer hours, no leave, reduced wages, etc.).

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basic rights in that country “can be explained, in part, by the paranoia and ruthlessness of Hungary’s communist leaders” (Pogany 1997: 139). Late Stalinism was characterized by a dormant but always possible terror. Illegal imprisonments or internments, confiscation of property, fake trials or murders of political opponents, killing people on the Hungarian-Austrian or German-German border who no longer wished to live in the “happiest barrack” (Hungary), or the state of workers and peasants (East Germany) were always a likelihood and did indeed take place.14 Late Stalinism was also characterized by a growing consumerism, even if it was rather meager and consisted of opportunities to buy the most trivial things, like better food or cheap furniture, or a Trabant car or holidays in Bulgaria. Consumerism represented an important intervening variable between the system and the people involved in the machinery of its functioning. This meager consumerism took on different names: it was called “goulash communism” in Hungary, “small stabilization” in Poland, and “normalization” in Czechoslovakia. To quote Vaclav Havel once more, late Stalinism entailed a mix of totalitarianism and consumerism (Havel 1985: 56). It also contributed strongly to the negative constitutional consensus debated in the second chapter of this book. Its important legacy is omnipresent suspicion, a direct consequence of the “enemy within” concept. To challenge such a system, to expose its lies, and to denounce its atrocities required morally and cognitively mature citizens – the civil society proper exemplifying civil courage – who have chosen the seemingly hopeless way out. That morally defined civil society did not fear being defined as “enemies within.” They opted out from the system hypocrisy – the late-Stalinist “lightness of being” or the benefits of “goulash communism,” “small stabilization,” or “normalization.” Therefore, Stalinism, early and late, was characterized not only by devastation of moral norms, by opportunism, and by omnipresent spying

14 ╇ Thus people were killed on the borders for attempting to emigrate. They were also kidnapped and killed by the political police inside the communist countries until the end of the 1980s. In Poland, the most famous victim was Father Jerzy Popiełuszko, kidnapped and killed by the political police in 1984. There were also other priests, as well as students and workers, killed by “unseen hands” in Poland. A parliamentary commission established in 1990 to investigate such cases (the Rokita Commission) counted 90 persons who were presumably killed in unclear circumstances by the secret police.



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and circulation of power. Its ultimate key traits consisted of unsound acts of civil courage in daily life situations, too. Such acts of civil disobedience or truthfulness were undertaken not only by the most famous dissidents, but also by ordinary people – by the unknown and unsung heroes of world history who were not blind to state crimes, who tried to help its victims, and who performed their professions honestly as teachers, lawyers, or journalists. Therefore, a significant legacy of Stalinism is rooted in two conflicting arguments with respect to the issue of its past reckoning: an argument that everybody was somehow tainted or smeared by it, countered by another that ordinary people – and not just the famous dissidents – were opposing it in their mundane, pragmatic ways by trying not to bend towards its rules. legacies of mass scale expropriations Another crucial component of Stalinism was the expropriation and nationalization of property. This was based on Stalinist constitutional semantics that considered the change of property status fundamental. It consisted of ideological arguments (disguised as scientifically proven), of appeals to social justice, and of stereotypes and resentments. At stake was the formation of a “progressive,” i.e., nationalized economy, and not only a classless but, in fact, a homogenized society composed of individuals and social groups wholly dependent on the state, and defined by the state. To this aim – next to the concept of progressive forms of property – the concept of class enemy was instrumental, as was the rhetoric used to compromise class enemies as parasites, exploiters, or bloodsuckers. To these were added the concepts of “traitor to the nation” and “suspect nationality,” used mostly to denote the members of ethnic minorities whose property was especially targeted by the new regimes. In all communist constitutions socialized property (“social ownership” corresponding to the term in Soviet law) had to be the basic type of ownership. It had to prevail genuinely over the non-socialized ownership of the means of production; that predominance had to be solidly protected by the civil code and the law of civil procedure as well as by the penal code. Among the socialized forms of ownership, state ownership (“ownership of the whole nation” ) was superior with respect to any other forms (social ownership, in particular a cooperative one, not to mention the personal one) and was defined as the “national.”

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The previously mentioned concept of “class enemy” was initially applied to big landowners and entrepreneurs, then to any possessors of productive property. With regard to peasants, the concept of kulak was used. Towards kulaks, i.e., peasants who were owners of farmland€ and did not want to permit its collectivization, a harsh course of action was introduced (modeled on the criminal Soviet action taken in the Ukraine). Typically, however, such a policy proved unsuccessful in Poland. In ECE, expropriations started long before 1944 and generally did not end in the 1950s. A case of particular importance is that of Jewish property. Prior to the establishment of communism, decrees or statutes aimed at the expropriation of Jews in the countries collaborating with or occupied by Nazi Germany were modeled on the infamous Nuremberg Laws and executed across ECE in the early 1940s. In Hungary, as a result of subsequent so-called “Jewish Laws” and other legal measures, the Jews were deprived, in part, of their agricultural land (Second Jewish Law of 1939). The final expropriation of Jewish property was due to a statute issued in 1944 before the Red Army entered that country (Pogany 1997; Paczolay 1999). In Hungary, as we are reminded, interferences with the property rights of Jews represented only one aspect of a general process of abusive, discriminatory, and genocidal treatment. It accompanied the draconian restrictions of employment opportunities from 1938 onwards, their conscription for service in auxiliary labor battalions in extremely harsh conditions, and finally, their deportation in 1944 to extermination camps (Pogany 1997: 17). In Moravia, Jewish-owned property was to be “Aryanized” and passed on to Germans, something fully completed by the end of the war. In Slovakia, the “Aryanization” policy resulted in the subsequent transfer of Jewish-owned property to Slovaks. In Poland, as a result of the German-Soviet Pact of August 1939, the massive intrusions into property rights started immediately thereafter. Ethnic Jews and Poles were deported from those parts of Poland which were annexed by Germany to the newly established “General Government”€; their property was confiscated, industrial plants were systematically removed and transported to the Reich, and the estates or companies of any use to the German economy were nationalized or confiscated. The property of Jews was not only confiscated, but also subject to massive and blatant theft. The German occupation and generally the Second World War brought about great changes of property rights in Poland. Polish state



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property in the areas occupied by Germans was assigned to Germany, and Polish concerns, mines, and heavy industry units were assigned to German concerns. In the territories occupied by the Soviets, the property of Polish citizens (ethnic Poles and all others) was subject to collectivization, nationalization, and confiscation. From the point of view of the ongoing restitution, those expropriations are important, because they were often legalized by the new, communist authorities.15 As already stressed above, The Shoah, World War II, and following events were decisive for many of those who found themselves in the West: they did not return to their homelands. If they did not indicate the will to retake property into their possession – which could be quite dangerous during Stalinism – their property was qualified as “abandoned” in order to be nationalized after a proscribed period had elapsed. There were also other interventions with regards to property rights. The most needed and long awaited agrarian reform started right after World War II in Poland, Czechoslovakia, and Hungary. It consisted of the redistribution of land to peasants. In Czechoslovakia the process of land reform was closely connected to confiscation of land from “suspect national minorities,” i.e., mostly Germans, and from wartime collaborators. According to estimates, some 71 percent of the land redistributed after the war in Czechoslovakia previously belonged to the German minority, i.e., to the Volksdeutsche with Czechoslovak citizenship (Pogany 1997: 41). The land reform in Poland closely coincided with the confiscation of property of ethnic Germans expelled to Germany as a result of Potsdam and a parallel flood of ethnic Poles flowing in from the eastern territories ceded to the USSR as a result of agreements concluded by the Allies in Teheran (November 1943), Yalta (February 1945), and Potsdam (July-August 1945). As Istvan Pogany observes, some 76 percent of the land redistributed after the war in Poland had previously belonged to Germans in areas which had been assigned to Poland by the Allies. The remaining 24 percent was made

╇ In Poland, the German expropriations were legalized mostly, but not uniquely, in those cases in which property was taken from its owner for public use. Indeed, in the opinion of historians, the “etatization” of the economy and nationalization of private property as well as central planning on a considerable scale were initiated by the German occupants. These expropriations were later legalized; their public use often meant that attractive buildings were turned into holiday resorts for communist party apparatus, or simply handed over for usage by high-ranking party members. 15

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up of land confiscated from larger land estates on Polish territory (Pogany 1997: 46, 47). However, with the progress of Stalinism in the late 1940s and early 1950s, land reform was put to a halt; instead, the collectivization of farms and nationalization of agricultural land was implemented forcefully, often brutally. The massive expropriations and nationalization of all kinds of property took a decisive step when the communists fully came to power by 1948. This went on, directly or indirectly, by means of law, in the shadow of the law, and/or by purely illegal means, that is, by economic pressures, political blackmail, or provocation until the regime change in 1989 (Skąpska 1999: 57–72). The expropriations reflected several meanings of the law as an instrument of social change. It was used as a homogenizing and dehumanizing instrument brutally applied. Since the societies in question were often considered backward and nationalized, state-owned and stateadministered property was seen a more efficient and rational than the private, nationalization laws were interpreted as an also brutal and ruthless, but necessary means of modernization and rationalization, especially in the domain of agriculture. Such law bore other important semantic characteristics and structural consequences. The first consisted of abstraction and categorization. Notwithstanding the fact that the subjects of expropriations were not only big owners – entrepreneurs and landowners – but also small holders, and the national and ethnic minorities (Ukrainian, Polish, German, Silesian, and others), they were very broadly defined as class enemies, sometimes also national enemies. The second comprised the expropriations also directed against identities of collectivities – national, religious, and ethnic – and entailing the nationalization of the collective property of churches, communal religious and cultural organizations, as well as of objects of art and other collectively possessed property important for the preservation of collective identity. This included, for instance, the synagogues of Jews and the forests of the Lemkos. Especially the Lemko case illustrates the close links between the usurpations and attacks on identities, not only individual but also collective.16 The third characteristic feature of expropriations is their

16 ╇ The Lemkos lived in mountainous southeastern Poland as a minority of predominantly Greek Catholic denomination, speaking a language related to Polish and Ukrainian. After World War II, Lemkos were accused of collaboration with the



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close links to the concept of citizenship and civic rights. If one defines property rights primarily as civic rights and as an important component of active citizenship, then confiscation of property could lead either to deprivation of citizenship or to its redefinition as fully dependent on the economic resources of the state. Various motives – aside from the racist, economic, and ideological ones – lay behind the commandeering of private property. DispossesÂ� sion could be a means of punishment, especially for treason against the state; it could be a means of some form of social – as distinct from ideological – justice as in the case of land reform. The striking feature€of many expropriations in ECE was that they were used, too, as a means of ethnic cleansing, of homogenization of cultures, and subordination to the dominant culture via nationalization of collective cultural objects and the changing of their meanings. Communist expropriations were also used to eliminate civil society autonomous organizations, eliminate all forms of autonomous cooperatives as independent forms of the economy, and, finally, eliminate individual and collective autonomy other than the state autonomy and restrict social differentiation. It was a condition for the formation of a society that was totally state-dependent and undifferentiated – homogenous racially, economically, and ethnically. Finally and most meaningfully, the communist government used expropriations as the most important ideological imperative in creating a classless society. In light of empirical research, dispossession is still vivid in the memories of victims as something contrary to their concept of the rule of law and justice. These memories play an important role in the efforts to regain property rights or gain compensation for lost property – in other words, to reestablish constitutional order and the rule of law. Recollections of the past further bear an important legitimizing or delegitimizing potential. In interviews with former owners or their heirs,

anticommunist and nationalist Ukrainian Liberation Army. As a result of these accusations – vehemently denied by the Lemkos themselves – their property, individual and collective, was confiscated in the years 1948–1949, according to the laws of 1947. Their churches were given to the Catholic Church or the Orthodox and their forests were nationalized. They were deported to western and northern regions of Poland where they were dispersed and settled in various locations. The policy toward the Lemkos was aimed at the destruction of their identity. They were defined as a Ukrainian ethnic group and were deprived of material indicators of their identity as an ethnic group – specifically churches and forests. The forests are described by Lemkos as sacred since they were given to them “by God.”

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as well as in documents presented in restitution proceedings, such motives as pride in the family past, in the achievements of close relatives (fathers and grandfathers), or in the past of a society or social group are also recalled. As a rabbi of Kraków has argued, for local Jews as well as Polish Jews more generally, the expropriation of collective, communal property meant the destruction of the material evidence of Jewish identity and culture; even symbolic restitution would be of great significance as it would document the seven centuries of the history of the Jews and the development of a flourishing Jewish culture on the territory of Poland.17 Representatives of the Lemkos also express their concerns regarding restitution as a means of restoring collective identity. Typically, these memories have been rather private in East Central Europe. Until recently, expropriations were seldom publicly tackled. The tacit acknowledgment of the dispossession and the lack of public debate about it was rooted in an ideological source: it was generally claimed that the expropriations were a response to claims for more social justice, and the nationalized property was turned over for public use, either in the form of state-owned companies or other forms of public property (e.g., museums, schools, hospitals, etc.), or as cheap housing, or applied in the long-awaited land reform. The atrocities committed were just swept aside and were, until very recently, a public taboo. However, the silence on these issues may also be related to the fact that expropriation not only entailed victims but also beneficiaries, and the memories of the latter, individual and collective as well, could be quite shameful. The greatest direct beneficiary of communist nationalization was the state treasury. After the reforms of 1989 – especially after those of the administration and government at the beginning of the 1990s, followed by the communalization of state-owned assets – the ownership was bestowed upon the local governments, much of whose income is derived from formerly state-owned assets. Therefore (for example, in Poland), local governments have sometimes become great opponents of property rights restitution and reprivatization. There were also indirect beneficiaries of confiscations and nationalization: all those who received the rights to use the public property such as the schools, hospitals, kindergartens, etc. Yet this also entailed those ╇ See the interview in Gazeta Wyborcza of 25 August 1999.

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who received the right to directly use a state-owned or even still private apartment (or other domicile) at controlled, low rent. For these persons the issue of restitution is an ambiguous one, as is the issue of the past expropriations. At least, as they argue, the usurpation was conducted without their direct and active participation and, hence, in their conscience, they feel “absolved” of any guilt. There are other beneficiaries who would not refer to history at all, not because it was so dramatic or the memories so traumatic, but because it was shameful. Interested parties would like to forget about the past or dispose of its burden as quickly as possible. They are those who profited from the Holocaust simply by taking Jewish property or facilitating the usurpation in a deep belief that the owners would never return and reclaim it. Still others profited from the expropriation of the property of ethnic minorities or the “exploitative classes.” The former includes the case of the Lemkos whose farms were sold very cheaply to Poles. According to the Lemkos, some of those incomers even took possession of the homes and furnishings in the presence of the original owners. The ugliest example of such private and direct profit from exproÂ� priations in Poland was the so-called schaber, i.e., looting of property allegedly German, but often belonging to the Silesian minority, by semi-organized gangs of persons from central Poland at the end of the 1940s. Considerable looting of personal property, furniture, objects of art, clothing, etc. took place after land reform, that is, the parceling out of not only land, but also, after legal and illegal nationalization, of buildings and manor houses. The looting found strong ideological support in the state propaganda. In Poland it was supported by the propaganda that the owners were traitors to the Polish nation in the case of the Silesians defined as Germans or the Lemkos defined as Ukrainians involved in an anti-Polish conspiracy, by a stirred-up hate for “capitalists” and landowners, and by antisemitism. Such arguments live long in social memories and are handy in reducing shame. Not only private persons were beneficiaries of expropriations but also institutions. In the former communist countries these include the state-owned companies suddenly enriched by equipment taken (illegally) from private owners. These include the communist party functionaries, and members of the security police who received the right to use buildings, luxurious villas, and hotels from the state as if they owned them. Finally, states were a special sort of beneficiary: they displaced peoples who lived on their territories and took over their

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belongings as well as the belongings of whole ethnic groups and nationalities, their objects of art, historical buildings, and companies. The legacy of past nationalization and expropriation overlaps with the legacy of criminal human rights abuse. Setting aside the entanglements and lack of clarity with regard to the latter, we are dealing with a legacy of complex institutional arrangements, the not always clearly cut divisions between those who gained and those who lost, as well as with the enormous costs of restitution with regard to the former. Thus, we are dealing with the direct and indirect beneficiaries of nationalization and expropriation, as well as with the new bona fide owners who bought their property (usually in good faith) from the state. Because the property could change its owners many times, this entails a legacy of actually dubious ownership rights if the new possessors bought the property bona fide but at a purely symbolic price as our data in the research on restitution in Germany and Poland has indicated.18 There are also the vested interests of those new possessors who benefit because of the quickly rising prices of real estate after the collapse of communism and the European Union enlargement. knowledge as power: the paradoxes of democracy and model approaches No wonder that both legacies – of state crimes and of private property nationalization – evoke burning questions for governments and societies. These dilemmas are still important in the countries in which the transformation started: predominantly in Poland, and to some extent in Hungary. Dealing with the past and settling accounts with it means deciding how new officials will treat the guilt of their predecessors. Evaluation of a system leads to the evaluation of its functionaries and their collaborators. Sometimes this ends in “naming” and “shaming,” i.e., in the stigmatization of perpetrators, instigators, and collaborators; sometimes it ends in the “cleansing” of structures of government, the “ousting” of compromised officials. If dealing with the past is oriented towards prosecution and punishment – in all forms of stigmatization,

18 ╇ For instance, there are some doubts regarding bona fide owners in cases in which very valuable property was bought from the local government almost for nothing by persons who had connections with government officials, by communist party upper rank officials, or by the members of the local governments themselves.



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lustration, and decommunization – one could call such an approach to the past “perpetrator-oriented” (Skąpska 2003: 199–218).19 Dealing with the past could also lead to compensating and honoring its victims above all, and then to rectifying the wrongs committed by the former regime inasmuch as possible. Especially the right to truth could be instrumental as a basis for a “victim-oriented” approach to the past. This could lead as a consequence not only to the “cleansing” of social institutions, but also to the honoring of the victims’ dignity. The participation of victims in the procedures of truth revealing and their compensation for physical and psychological injuries as well as property rights restitution, restores their trust in law and justice and in the new government. Thus, it has a great legitimizing potential so crucial for new democracies. It is also instrumental for the involvement of victims in the process of postcommunist, democratic reconstruction. Hearing victims, making their experience a matter of legal debate, and, whenever such debates are made public, making their experience a matter of public concern is of great potential in overcoming their isolation and exclusion, and helping them out of the silence that surrounded them before, at least in the public sphere. Moreover, it helps to overcome the deficits of the narrow law-governed state principle interpretation by encompassing human rights protection within it.20 Dealing with the past could also build a foundation for the reconstruction of social bonds on the basis of reconciliation, and of the “healing” of social wounds after the truth about the past is made public.21

19 ╇ The perpetrator-oriented approach seems the most compatible with the conventional understanding of the law-governed state principle and also reflects some cultural features of those societies in which it was initially conceptualized and introduced into legal systems (see Skąpska 2001: 88). 20 ╇ In the reality of postcommunist societies, the human rights-oriented approach seems the closest to the definition of the law-governed state as victim-oriented. The effects of such a conceptualization are to morally justify and honor individuals and groups who resisted and fought against Stalinism. They are, too, a foundation for the rehabilitation of those who suffered under that regime and for restitution of their rights (including to property). 21 ╇ Emblematic of a healing version of past reckoning is the famous Truth and Reconciliation Commission in the Republic of South Africa, established under the Interim Constitution of 1993 in that country, as well as a number of such commissions in Latin America. According to its analysts, the Truth and Reconciliation Commission in South Africa was essentially seen as a forum where the victims and perpetrators of apartheid could tell their stories. A link was drawn between “confessional” and “tribunal”: a “legal tribunal” and “public confessional” (Christodoulis 1999: 4, 5).

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The approach to the past, especially learning the truth about it, has an important sociopolitical dimension. It constitutes a test for democracy in accordance with the Foucaultian argument about knowledge as power. The knowledge at stake is of a highly sensitive nature: it consists not only of information about participation or collaboration in human rights abuse, but – perhaps predominantly – of information about cowardice, opportunism, individual weaknesses, shameful behavior, and also some sensitive personal characteristics. It is a knowledge one would never reveal publicly. Such knowledge provides considerable power to those who have access to it. This power could be in the hands of politicians who know the files, experts working in archives or institutions of national remembrance, lawyers taking part in respective proceedings, and any other functionary of the former or present regime who had or has access to the files. Thus, the current Chairman of the Institute of National Remembrance in Poland, an institution where the security police files are collected and analyzed, described his position (in a television interview) as similar to that of God because of the enormous amount of sensitive information to which he has access. Additionally, dealing with the past is the subject of political decision-making. It takes place in the context of existing power relations in all their aspects: the symbolic power in the domain of public debate, the political power in the domain of lawmaking, the professional power of lawyers in the process of adjudication, and the above-mentioned power of knowledge about the data collected in the files. Hence, if the “file” is not made public, it easily attains the status of a crucial instrument in political power struggles, in the “outing” of political opponents. If it is made public, it might reveal not a blatant crime but rather a shameful weakness, not to mention other sensitive information collected by the former government to be used as a means of blackmail against political opponents. Therefore the difficult discourse about the past reveals deeply vested interests in hiding or exposing some of the “truths” about it (Łoś 1995). Nonetheless, if the truth about the past is learned and debated amidst narrow circles of politicians, experts, and government functionaries, then it is known only to the elites and the meaning of democracy is reduced to purely formal proceedings. This means a paradoxical revival of former divisions between those with access to sensitive data about citizens, and those who control knowledge about key social phenomena and processes, while the rest of the citizens can only express their opinions once every four or five years by voting.



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The meaning of democracy should be broader and deeper, including public debate and the possibility of freely expressing views and opinions, engaging all interested persons in communicative action on an equal footing, according to the model of the legitimizing potential of communicative rationality. This deeper meaning of democracy, as well as the communicative legitimization of a democratic constitution is of great importance for postcommunist societies after the long period of imposed silence and censorship, and in ECE in general after its history of deep divisions between the enlightened elites – participants in public debates – and the uneducated masses, treated with contempt as those in need of enlightenment and protection against their own vices. With regard to the period of Stalinism this entails a division between the former dissidents who heroically opposed the oppressive system, and the rest of society treated as if entirely smeared by (implicit or explicit) collaboration with it or as not having enough moral or intellectual ability to make reasonable judgments about the past. Here one can refer to Michel Foucault’s concept of pastoral technology (Foucault 1994). Such a technology could be applied to whole social sectors and not only individuals. In the latter case, the “pastors” take care of their flock and prevent the “simple people” from transforming the public scene into one of sheer revenge as the pastor assumes. Settling accounts with the past by hearing victims and opening files stands as an opportunity to overcome such legacies, to hear all voices and debate all experiences, to make the knowledge about the past accessible to all interested, and, above all, to supplement postcommunist constitutionalism with the experiences and expectations of ordinary people to supplement expert knowledge with local knowledge.22 In other words, democracy could be measured by equal protection of the rights to truth and to remembrance, granted to any person who has a proven interest in learning of the truth about the past atrocities as a victim of the human rights abuse, or as a suspected perpetrator or collaborator. The files could be made entirely public and present an important topic for public debate in order to entrench postcommunist constitutionalism in the broadest social context.

22 ╇ Expert knowledge in this case functions predominantly in the form of knowledge of legal experts who are elaborating data according to legal prescriptions (i.e., defining the action, establishing the facts, and the causal nexuses between them), whereas local knowledge functions in the form of vague definitions based on experiences, emotions, and evaluations, daily-life definitions of situations, but not systematized observations.

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On the other hand, reckoning with past human rights violations may present a serious challenge to the society itself, its own self-conceptualization and its identity as a victim of terror. As the files were mainly prepared to compromise people, they could therefore consist of information on private affairs (such as personal sexual preferences); revealing these truths today could challenge a current self-image. The files reveal, too, the extent of individual collaboration with the regime. Past reckoning could then comprise a source of possible social trauma if the opening of a file reveals shameful participation or collaboration€with the oppressive regime, taking part in atrocities, or profiting from human rights violation such as from the confiscation of private property. Such a case of revealing the past could be especially painful in those societies which generally, as in Poland, defines itself as a society of victims and considers victimhood and the heroic struggle against oppression as crucial to its identity. In order to avoid such a painful reconsideration of the society’s own identity and to reduce the possible€social trauma, the concept of a “thick line” dividing the past from the present was proposed by the first democratic Prime Minister in Poland, Tadeusz Mazowiecki in 1989. In Hungary, the initial approaches toward the past human rights violations were summarized in the slogan “Living well is the best revenge” (Halmai and Scheppele 1997: 83). Handling the past could then consist of the concealing or silencing of uncomfortable opinions, closing the files and leaving them to experts, granting amnesty, and in the actual legal immunity of perpetrators, instigators, and their collaborators. We are dealing here with another paradox of the democratic society confronted with its difficult past – that is, the paradox of democracy as a justification for suppression of such information. This could result in actual popular outrage directed toward those pressing for the truth as illustrated by the behavior of some Argentinians toward the Mothers of Plaza Mayo (Cichecka 2006: 67). Hence, there appears a temptation to hide the truth in the archives and grant access only to professional historians. The concept of the thick line and its resulting actual concealment of past crimes proved to be insufficient when confronted by legacies of past human rights abuse. One has to deal with the perpetrators and instigators of the most atrocious crimes committed by the functionaries of the old regime until the very last days of its existence (Łoś and Zybertowicz 1999). Moreover, it became apparent that it is not possible



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to get rid of a nation’s history and answering questions related to the past is unavoidable not only because of the democratic nature of the new regime but also because of the new information technologies. It also became quite clear that all efforts to conceal the truth would provoke great political problems and lead to public cynicism. As it is argued, democratization represents circumstances under which officially sponsored versions of history and the tabooing of the past runs out of control along with historical myths and delusions. Then “atrocities vehemently come to the surface” (Reinprecht 2001: 102). Here one can refer to the German experiences of 1968 when the revolt of the youth also encompassed a revolt against concealment of the Nazi past: if concealed, the past can easily turn into a political instrument crushing opponents, or a moral weapon used against those involved in its containment, regardless of their motivations. Additionally, in Central and Eastern Europe, as anywhere else, it soon became clear that some approaches to the past – notably those connected with the thick line policy proclaimed by the government in order to consolidate society – could acquire quite an authoritarian€ undertone, even if promoted by respected former dissidents as in the already mentioned case in Poland. If the voices and daily life experiences of persons who lived under an oppressive regime are not taken into account, then, applying the classic Alfred Hirschman proposition, “loyalty” disappears, the legitimization of the new, democratic government is questioned, and the danger of an “exit,” of a refusal to cooperate with and participate in democratic procedures becomes quite serious (Hirschman 1970). The “exit” translates into disenchantment with the new order and in a lack of trust in the new authorities€and institutions. Needless to say, in democratic societies the past cannot be hidden from the public, especially if the mass media and Internet are at its disposal. On the contrary, if not revealed and publicly€ debated, it could become a subject of political provocation and blackmail. So it seems that the broadest public debate about earlier human rights violations – even if it is painful and puts the national myths in doubt – is a necessary, indeed a primary step in the process of a democratization not limited to purely formal arrangements. It contributes to the sincerity of the founding slogans, it has a “healing” quality in a rather surgical sense of this concept, and it contributes to the overcoming of previous exclusions from the public sphere. As stressed above, it

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helps to define the crucial, primary difference in the formation of a liberal democratic constitutionalism and include the broadest social circles in this process. These are burning issues of constitutionalism and the law-governed state principle in the new democracies of ECE. They require a resolve, great efforts, and civil courage on the part of societies and governments. They also provoke some questions concerning the “output” – the truth that emerges from trials and/or from the opened files, the institutional arrangements with regard to the compensation of victims, the degree of property rights protection resulting from regulations and judgments on restitution, the usage made of knowledge about the past by politicians and citizens, and the restorative effects of dealing with the past. On the other hand, the “input” – the construction of institutions and procedures which are to deal with the difficult issues of the past under the auspices of the constitutional law-governed state principle – manifests the profound differences between societies which have to face the reality of their own past, apart from the questions and dilemmas they have in common.23 Thus, the new governments should decide whether they wish to primarily stick to the constitution and not negotiate its contents, or to make the constitution expedient to other goals: financial stability, involvement of the former regime functionaries into the process of social reform, legal certainty, and narrowly interpreted legal predictability. There are also other sociopolitical approaches possible. With regard to past human rights violations other then property rights, they could follow the policy of the German Chancellor Konrad Adenauer. This policy was based on a desire “not to traumatize the already traumatized society” when he opposed the public debate on the involvement of German society in the functioning of Nazism after World War II (cited after Schwan 1997: 43). In contrast, the East Central European governments could choose to be faithful to the initial principle of “living within the truth.” Combining approaches to past human rights violations, one can differentiate between four models of past reckoning. The first consists of the implementation of the classic law-governed state principle interpreted narrowly and literally. The second, which refers to the right 23 ╇ Significant differences between the four countries under consideration are analyzed in this volume. However, this process is still dynamic and the chapter on past reckoning in ECE is literally not yet closed as we see in the Polish case.



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to truth and the general rights of a system’s victims, is supported by international law and human rights protection. The third is known as the “transitory justice” approach, one valid for a period of transition towards liberal democracy and an unquestionable rule of law. It is argued that the “transitory justice” approach, after the first period of innovative practices, is based rather on some moral standards not conforming to existing law which will transform itself into a “regular” model of the rule of law once accounts with the past are settled (Teitel 2000: 5). The fourth approach was based on the policy of suppression illustrated by the proposition of drawing a thick line. With respect to the restitution of property rights, the law-governed state principle consists of constitutional guarantees protecting property rights. It places an obligation on governments to restore property rights in reality (to give back what had been nationalized or confiscated) or, if this is impossible, to compensate fairly for losses which is also a matter for the constitution. Such an attitude is supported by the argument according to which property rights are civic or human rights constitutionally guaranteed. Therefore the restitution of property rights and/or compensation for the loss of property is considered a primary task for new governments – going beyond any further negotiations and parliamentary interventions since constitutionally guaranteed human rights are not negotiable. This was the case of property restitution in Germany after 1990. In East Central Europe, one can observe various approaches to restitution as an indicator of constitutional property rights protections. The first model approach leads to the recognition of communist nationalizations as made by sovereign and internationally recognized governments, but guarantees restitution wherever the nationalization or confiscation violated then valid law. The second offers restitution or compensation of property based on an indisputable protection of property rights; the third consists of innovative institutions based on a compromise between the government and the victims of nationalization or confiscation; and the fourth means no restitution at all. These model approaches are partially reflected in the post-1989 institutional arrangements in ECE. The initially adopted approaches toward the crimes were dramatically changing in such countries as Hungary and Poland. There, policies of concealment of past crimes and immunity for state officials were subjected to strong criticism; data compromising state officials were constantly leaking from hidden files, being published in newspapers

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and/or the internet. That led to a considerable change of the initial Â�policies. Remarkably, in Poland and Hungary a great distrust of the government is still typical.24 Thus, in Hungary and Poland, as well as in all other postcommunist countries, after some dramatic turns of events – mostly consisting of a so-called “wild lustration,” i.e., the above-mentioned unauthorized publication in the form of “leakages” of the names of alleged collaborators, often prominent members of government (even presidents and prime ministers) – lustration laws were finally adopted, installing legal control over the process and ending the officially sponsored concealment. This belated reckoning of the past, the lustration and decommunization, is as yet incomplete as seen in the Polish case. In Poland – once a leader of political changes in East Central Europe – a lustration law was introduced as late as 1997. Its main characteristic of was a legalistic approach toward the past. This law declared that civil servants, deputies, senators, and judges as well as candidates for these positions must disclose whether they consciously collaborated€with the secret police or worked for them between 1944 and 1990. This approach was also based on sequestration of the archival records of the secret service in the newly founded Institute of National Remembrance. Each citizen has a right to apply to have access to his/ her file, but that decision is taken on the basis that the applicant has been victimized – only persons recognized as victims are granted access to their own files. This law was strongly criticized in Poland, not only because of doubts with regard to the evidence – secret police files – but also because of the limited access to the files and the exclusion of the general public from the process. After a series of scandals when whole catalogues of names were outed via newspapers and on the web, a new lustration law was proclaimed in Poland in 2006. It was declared not actually binding by the President of Poland immediately after its proclamation, although binding formally having been approved by the Parliament. This 2006 lustration law was amended and passed by the Polish Sejm in January 2007 but was, in turn, invalidated by a verdict of the Polish Constitutional Tribunal in May of that year. Thus, the lustration law will once more be subject to parliamentary proceedings and perhaps to constitutional review as well; its future is far from predictable now. 24 ╇ As empirical data illustrate, lack of trust in the government is the highest in Poland (among all members of the European Union).



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In the meantime, the most important political actors (i.e., the President and the strongest political forces in the Polish Parliament) are calling for a change to the 1997 Polish Constitution in order to (among other things) redefine the position and prerogatives of the Polish Constitutional Tribunal. The Polish case illustrates clearly how a policy toward the past, if not successfully, even if painfully commenced immediately after the overthrow of the former regime, is used as a weapon in political struggles, poisons the public sphere, and public debate, and leads to the questioning of the whole constitutional order. Another important feature of the Polish approach to past human rights abuse is a degree of support for the establishment of extrajudicial bodies and procedures, such as types of truth commissions, or, as is currently the case with the files of collaborators within the Catholic Church, commissions of “truth and care” or “truth and reconciliation” dealing with cases in which strict adherence to the rule of law principle has been unsatisfactory. Yet another institutional attitude towards the past was taken by the Constitutional Court in Hungary, quite in accord with the description of that state’s revolution as “lawful” in the strictly positivistic sense. As the most important agent in the formation of a constitutional community in Hungary after the collapse of the communist regime, the Constitutional Court there has several times referred to such values as legal certainty and clear definitions of legal concepts as the foundations of constitutionalism. In light of that approach, retroactive justice€and the possibility of punishing political perpetrators, instigators, and functionaries therefore runs counter to the principles of legal certainty and is outweighed by the lack of a clear-cut legal concept that would enable precise definitions of crimes and punishments. Similarly to the Polish case, this approach did not prevent wild accusations and the publication of lists of agents’ names. Finally, a law was passed in Hungary according to which a very limited group of officials is subject to lustration. Currently, after a series of scandals when lists of collaborator names were published in the mass media and internet, there are projects to change the law substantially and open the files to everybody. From among the debated countries, only the Czechs have undergone a rather thorough and comprehensive lustration and decommuÂ�nization, mostly because of its approval by then President Vaclav Havel. Thus, considering the difficulties with just retribution, Havel signed the 1993 “Law on the Illegitimacy of, and Resistance to the Communist Regime.”

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The effects of that law were as much perpetrator- as victim-oriented. Its aim was to morally justify and honor individuals and groups who, based on a moral conviction, resisted and fought against the former regime. Further, it also provided a basis upon which to rehabilitate or elevate, as well as to compensate those who had suffered under that regime – the first issue dealt with by the new government. This specific legislation was not strictly legal but rather proclamative; it appealed to conscience and ethics, stressed the ethical justification and honoring of victims, and emphasized their moral convictions in fighting against the criminal regime. The Czechoslovak lustration law of 1990 has been strongly criticized, above all because of the presumption of guilt (Siklova 1996; Gintis 1999). There was also the problem of the secret police files as the main source of evidence, as well as the possibility of their verification and their vast numbers. With respect to the “transitory justice” model, one can observe that the Czechs have this period behind them. Independent of the different approaches, all these countries continue to face some unresolved issues which they inherited from the past. These, in turn, contribute to difficulties in the interpretation of the constitutional lawgoverned state principle, and the formation of a new social consensus in the respective societies. dilemmas of the law-governed state principle The principle of the law-governed state represents a founding norm in all postcommunist constitutions. Prima facie, this principle imposes on new governments an obligation to punish crimes and redress wrongs, to give back what was illegally taken and confiscated or fairly compensate for losses. Equally important is the principle of non-retroactivity as a basic component of the law-governed state. However, this most important principle – in the case of post-dictatorial and post-Â�totalitarian regimes – contributes to ambiguities in the transition period. These ambiguities exist, firstly, because the crimes were committed by functionaries of a state acting against the society but under then-existing law; and, secondly, because those functionaries were involved in gross human rights violations but not in clear-cut roles, i.e., not only as direct perpetrators but also instigators, as highly placed officials issuing orders or defining policy aimed at the destruction of “system enemies,” as collaborators denouncing such “enemies,” or as persons placed in some



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crucial positions responsible for the functioning of the Stalinist system. Here we have in mind those performing political functions or functions in politically sensitive sectors such as the communist party apparatus, police and army, or education and mass media. In the case of direct perpetrators and instigators, the legal solution entails concepts of crimes against humanity, war crimes and so-called communist crimes which are not subject to statutes of limitation on prosecution. With regards to postcommunist constitutionalism, to apply this solution necessitates a resolve to accuse the officials of communist governments as perpetrators and instigators of crimes against humanity in order to justify retroactivity. Such an act is especially difficult if the former instigators have been partners at round tables. There are also other important considerations with respect to the application of the law-governed state principle in the reality of the postcommunist society: these refer to the individualization of guilt as another crucial component of the law-governed state principle. This concretization and individualization of guilt, typical of proceedings within the domain of penal law preclude its being ascribed to functionaries of an anonymously acting “system.” Here, in the form of retributive justice, the crimes are considered the act of real individuals, of the functionaries or collaborators of the regime who were actively€ representing it and with whom one can actively deal today. This would be no small feat in societies used to “system thinking” who were made to consider public officials, judges, prosecutors, investigators, and their collaborators as “puppets of the system,” absolved of personal responsibility. “Never again” is here supplemented by a conviction that “killers should end up on a gallows.” That perhaps would prevent other people from entering into the service of evil forces. However, one should emphasize that the multifaceted and muddied reality of the communist system, not only did a division of power not exist, but a complex structure of informal or semiformal rules and orders issued by the communist party officials often acting collectively (i.e., the “Politburo” ) was emblematic. In this context, the task of distilling and defining the contribution to human rights violations of a specific person, especially in the case of instigators, is not an easy one. As was previously mentioned, the application of the law-governed state principle in cases of property rights restitution comprises another crucial constitutional issue, part of an entire concept of restitutive justice. On the other hand, the postcommunist governments are confronted by the often impossible task of fulfilling all legitimate

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Â� expectations of the former regime victims because of the sheer number of claims as well as the strong interests of restitution opponents. These serious conceptual, political, social, and economic dilemmas in settling accounts with the past by applying the law-governed state principle after the collapse of totalitarianism or a dictatorship occur especially if this principle is interpreted conventionally. In other words, in the tradition of the legal positivism of civil law countries typical of ECE, there was a tendency to observe only existing law and interpret it literally (Morawski 1999: 41, 42). This positivistic tradition was directly reflected in the verdict of the Polish Constitutional Tribunal in 1995 when it declared that the law proclaimed by the communist authorities in Poland according to then-binding procedures did not become invalid even if it was unfair or non-humanitarian (as cited in Morawski 2000: 49). If such a directive is additionally legitimized by the values of the legal certainty and predictability of law (Solyom 1999), then a temptation occurs not to redress past wrongs, especially if they were committed by public officials according or in the “shadow” of the legal code in existence prior to 1989. It has been noticed that the law-governed state principle literally interpreted is badly suited for dealing with former human rights abuse and, indeed, can be used as protection for old regime functionaries. In this way, it would contribute to the preservation of the status quo and to structural reproduction. Such a purely formalistic and literal interpretation of the law-governed state principle was adopted by the pioneers of postcommunist transformation: the governments and constitutional courts of Poland and Hungary under the ideology of legality so characteristic of the round tables.25 Another important 25 ╇ In Hungary, as in any other postcommunist country, the main issues of legislative measures concerning the human rights violation committed by the former regime were property restitution, lustration, and criminal prosecution of crimes. As it was stressed, the main concepts framing the review of transitional legislation in the jurisprudence of the Hungarian Constitutional Court were legal continuity and the rule of law [see Art. 2(1)]. However, as emphasized, the Hungarian Constitution does not establish a requirement of legal continuity. This is a concept developed in response to the government’s attempt to lift the statute of limitations for crimes which were not prosecuted for political reasons in the previous regime (retroactive justice criminal€ cases). Therefore, upon the preliminary review petition of the president of the republic, a unanimous Constitutional Court abolished the retroactive criminal justice bill in its entirety. The entire position of that court was summarized as follows: “The Hungarian Constitutional Court clearly said that it is not willing to subject transitional rules to ‘transitional standards’ of constitutionality” (Uitz 2005: 246; see also Paczolay 1993: 561).



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motive stems from the conviction of the participants of the talks that society should unite its efforts to build a better future, the liberal democracy, and not scratch its wounds. Yet another motive was a fear of some democratic dissidents turned new political elites that the society would not rise to expectations and would turn the public sphere into one of sheer revenge. As pointed out earlier, the initial policies of past concealment have proved to be entirely ineffective and the narrow, literal interpretation of the law-governed state principle in some cases dysfunctional. In contrast to the envisioned restoration of social bonds and political cooperation aimed at democratization and liberalization under the auspices of legal certainty and foreseeability, these policies led to growing social divisions and widespread moral disenchantment with the new governments, to popular cynicism, to illegal openings of files and the leaking of their contents used as political blackmail, and to growing accusations by political opponents of collaboration with the former regime, or participation in human rights crimes. Moreover, a literal interpretation did not fulfill the expectations of protecting the right to truth and to remembrance. In this way, an important potential for postcommunist constitutionalism, as well as its moral impulse, was lost. Instead of being innovative, it became complacent. It also emerged that the literal and positivistic interpretation of the law-governed state principle on the part of the government and judiciary is either greatly naive or arrogant or both and, above all, is remotely removed from the reality of postcommunist societies. In that reality, the evidence of crimes was not only illegally destroyed by interested parties – an argument raised often by opponents of any form of transitory justice – but was also illegally copied, stolen, or even hidden in order to be used as instruments of blackmail. In any case, as political gossip currently claims, copies of the files are archived in Moscow. Finally, in Hungary and Poland, all of this led to important changes in the initial policies and subsequent adoption of some models of effective handling of past crimes, some models of transitory justice.26 As a matter of fact, in Poland as late as 2007, this process of altering 26 ╇ After several years, that policy of “living well is the best revenge” and the formal interpretation of the law-governed state principle was changed, and Hungary, as many other postcommunist countries, has witnessed scandals connected to the revealing of files on collaboration by prominent politicians with the former regime: an ironic version of the “living within the truth” proposition.

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the original policy was far from over; as noted earlier, the most recent lustration law was declared unconstitutional.27 This, in turn, as also noted above, has led some politicians to propose a crucial change in the Polish Constitution itself, and especially with respect to the competencies of the Constitutional Tribunal. Additionally – as debated – the evaluation of the communist legal code from the perspective of the law-governed state principle, even if motivated by legal certainty and predictability, creates a legal fiction with a distinctive projection of a hyper-reality. This, in turn, consists of an evaluation of a law-governed state as if it were real although characterized by the breaking of this very principle. This was once known as “legal hypocrisy” (Zajadło 2003: 18). To these problems I will return in the final paragraphs of this chapter. The legacies of the past open a unique opportunity to go beyond the narrow, formalistic definition of the law-governed state and to overcome the burdens of a positivistic legal culture. Firstly, they create a possibility of expanding its interpretation to the standards of international law and international human rights protection, and, secondly, to local experiences and local expectations of civil society. Issues of dealing with perpetrators, instigators, and collaborators and how to reconstruct morally devastated societies after totalitarianism are not new. Most prominently, they were present when Germany was rebuilding her constitutional order after 1945 and had to promote the formation of a new, liberal and democratic constitutional community after the Holocaust. They were also present in other countries – after the collapse of authoritarian regimes in Spain, Portugal, and Greece, as well as of dictatorial regimes in Latin America and of apartheid in South Africa. This list could be extended to include other countries and continents in the foreseeable future. However, the German example is of a special interest here, not only because the country has gone through the process of political and social reconstruction twice in her contemporary history – after World War II, and after the dismantling of the Berlin Wall. In both the first as well as second case, external forces had an important impact on the emerging liberal democratic constitutionalism in that country, on the meaning and interpretation of the law-governed state, and, Â�consequently, on a

27 ╇ In Poland, the debate on lustration and the best means to reveal knowledge about the past has continued for over two decades.



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new theory of German society about itself expressed in the German Basic Law of 1949. After the Second World War the external forces were the Allied Forces; after the Berlin Wall’s collapse it was the Federal Republic of Germany with her model Basic Law and other institutional arrangements (on hand and ready to be implemented) that contributed meaningfully to the emerging subsequent constitutionalism. With respect to the comprehensive restitution of property rights in Germany, it is also sometimes argued that it was imposed “from above” by the winners, i.e., the West Germans. One has to add that notwithstanding this external impact and the ready institutional framework, the Germans, too, experienced great difficulties in the process of handling the past and reconstructing society (Offe 1994; Schwan 1997). Nonetheless, it is equally important to recall other typical features of past reckoning in Germany crucial for the current debate on postcommunist constitutionalism. Firstly, after World War II, German constitutionalism experienced a great revival of natural law theory reflected in the first twenty articles of the German Basic Law and, above all, in the principle of human dignity protection as its opening norm. Moreover, in post-1945 Germany, the so-called Gustav Radbruch formula was used for evaluation of Nazi law and justification of retroactivity. Briefly, according to this formula, the law loses its validity if it flagrantly violates basic moral norms (Radbruch 1973). This led to the concept of legalized illegality (gesetzliches Unrecht) and the fundamental criticism of legal positivism understood as a literal interpretation of the law and a strict separation of the law and morality. This would make it possible not to punish even the worst perpetrators, if their actions were compatible with then valid law. As a Polish author argues, the so-called thesis of separation of law and morality”… accepts dogmatically the priority of legal norms over moral rules in every situation; giving, thus, the practically unrestricted possibility of legalizing all kinds of atrocities” (Morawski 1999: 47). Thus, in Germany, as with the Eichmann trial in Jerusalem, higher moral standards were used in order to evaluate the law and, consequently, the actions of governmental officials undertaken under it. As accented by this, the German experiences represent important issues of legal philosophy. At stake is not only the reinterpretation of the retroactivity principle in view of responsibility for crimes against humanity and war crimes, but “the essence of law and its philosophy” (Zajadło 2003: 20). Secondly, in postwar Germany as well as similar cases elsewhere, international pacts and covenants were used to identify a discrepancy

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between a totalitarian legal system and international human rights protection. This, in turn, would enable the declaration of respective dictatorial and totalitarian law as invalid and, in consequence, make it possible to prosecute human rights abuse. Towards this aim especially the Declaration of Human Rights of 1948, and the Pact on Human and Political Rights of 1966, as well as the European Convention on Human Rights of 1952 were used. Thirdly, not only after 1945 but above all after 1990, the key role in the entire process of past reckoning and reinterpretation of the law-governed state principle was played by “ordinary people”: judges of the lower courts, public prosecutors of lower rank, as well as lay persons – including the budding civil society which protested against the destruction of files and, in fact, became leaders in their collection and preservation as in the most prominent case of Joachim Gauck in Germany.28 However, as has already been accented in this book, it is very difficult to refer to natural law at the beginning of the 21st century when its very source and its interpretation is in doubt. In accordance with the concept of contextualized constitutionalism and with the argument on the need of a positive constitutional consensus as the social foundation of a postcommunist constitutional community, a possible approach to the interpretation of the law-governed state principle would be recognition of the aforementioned “local knowledge”: the experiences of people whose rights were violated on a mass scale. Thus, in order to render this principle legitimate and compatible with expectations of social justice, it is important to open its interpretation up to the experiences and expectations of the victims of totalitarianism and dictatorship. Again, referring to Michel Foucault one can argue for a genealogy in the process of dealing with the past, subordinated to the lawgoverned state principle, i.e., for a combining of legal expertise, historical knowledge, and local remembrance of atrocities (Foucault 1976: 22). As we already know, not all cases of human rights violations were actual “crimes” as defined in criminal code. Novel and temporary institutions are thus yet another answer to the limitations of a formalistic interpretation of the rule of law principle (Offe 1994: 184ff; Teitel 2000). The model of transitory justice has two variations. The first, the 28 ╇ The involvement of “ordinary people” in the process of past reckoning is typical of not only ECE, of course. The most prominent is the previously cited example of the Mothers from the Plaza Mayo.



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Â� “surgical” model of dealing with the past human rights violations consists predominantly of a quasi-penalization of perpetrators and collaborators. It starts with their disclosure, targeting, and screening (lustration),29 and then the cleansing of the state apparatus, system of justice, education, and media of persons compromised by collaboration with the previous system, and finally ousts the communist nomenklatura, political police, and its collaborators from the public sector (decommunization). Of course, this does not preclude compensation for victims and fair restitution of property rights, but its fundamental€aim is to strip the democratic state structures of persons involved in the functioning of the previous regime. This has an important sociological and political effect. It enables the new government to rid itself of individuals – e.g., teachers, university professors, or administrative officials – who would otherwise form a considerable political force. Moreover, they might want to preserve the sort of legal order guaranteeing them at least security and immunity and would generally help them maintain networks and connections in key institutions: political, educational, and governmental. However, one needs strong legal and political instruments to control the functioning of transitory justice and prevent its transformation into a tool in political struggles. Hence, as the earliest and most recent Polish examples clearly illustrate, this type of transitory justice quite easily runs out of control and turns itself into a weapon used to eliminate political opponents. In contrast, the healing version of this model is aimed at compensating victims, truth telling and eventual reconciling as a way of reconstructing postcommunist societies. With respect to the restitution of property rights, an interpretation of the law-governed state principle imposes on new governments (primarily on the lawmakers, the Â�judiciary, and civil servants) not only some innovative attitudes but 29 ╇Modern usage of the term “lustration” (also known as “vetting” ) was initiated by the Czechs and their comprehensive law of 1990. Under its provisions, every citizen gained the right to apply to a special office for the result of his/her lustration, a document stating whether he/she was or was not registered as a collaborator of the secret police. This document is required in order to serve in certain state posts, to run for office, or to be employed in certain government institutions. Those who hold positions requiring lustration must resign if they refuse to provide this document. People who disagree with the findings in their report can seek redress from the Appeals Commission. In some opinions, the anomaly of the Czech lustration process is that it affects those labeled “candidates for collaboration,” i.e., those whose collaboration was questionable. The worst perpetrators never applied for their lustration, quietly resigned from government posts, and moved to new, more lucrative positions as entrepreneurs (Siklova op. cit.: 58).

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also empathy with victims. Thus, if restitution and reparation is impossible because of its complexity and enormous costs – if it imposes too great an economic burden on society and if even verdicts of the European Tribunal of Human Rights granting restitution in kind are not implemented – then symbolic aspects of property rights cannot be underestimated. Therefore, property restitution in ECE seems also to contribute to the reinterpretation of rights – in this case of property rights – and of the past of persons and ethnic, religious, or national groups by remembering what belonged to whom. This represents yet another form of fair remuneration within the framework created by the broadly interpreted law-governed state principle. The symbolic aspects of property rights are hence yet another chance for a positive constitutional consensus. It also seems plausible to suggest the redefinition of the rule of law in such a situation in which full financial compensation or full restitution of property in nature – which itself could be a blessing in disguise – is no longer possible. Perhaps, a good direction was indicated by the previously-cited rabbi in Krakow. In an interview with the Polish daily Gazeta Wyborcza, he pleaded for important symbolic compensation and, with regard to communal buildings previously owned by the Jewish community in Krakow, for a sign that they were part of the great Jewish heritage in the form of an inscription on buildings (e.g., hospitals, schools, libraries, and orphanages), marking that they had once belonged to Jews; such acts would commemorate the long-lasting, not only physical but also cultural presence of this minority in Poland. Certainly, such an approach seems appropriate only in cases in which full restitution is impossible or too difficult to implement. Another approach was taken by Polish landowners who, during their February 2001 meeting in Warsaw, after long and heated discussion withdrew claims for full compensation and approved a partial compensation for their losses after considering the public good, i.e., the economic circumstances of the country. In all such cases, the right to restitution is closely linked to the right to remembrance – another possible contribution of postcommunism to the development of constitutionalism. “alienating justice” or a positive constitutional consensus? It seems the matters of how to establish and interpret the law-governed state and, simultaneously, how to reckon the past atrocities and wrongs



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are more pertinent, and the dilemmas created by the past legacies are more difficult in the case of the postcommunist democracies in East Central Europe than in many other countries. They represent the consequences of Stalinism, and also of the negotiated nature of the transformations, of the lack of a clear rupture – a clear division between the old, anti-democratic, and the new, democratic government, as discussed in the Prologue to this volume. They result from the legal continuity, and in ECE, from the “lawfulness” of great change. Also the past here was quite distinct. In contrast to human rights violations created by the occupation, war, or civil war, and consequently, the clear division between the perpetrators and victims, or the human rights violations conducted by a government unequivocally condemned – as was, for instance, the Nazi government in Germany – in the case of ECE the communist governments were internationally recognized as legitimate. Yet, as we already know, there existed a broad “gray zone” of activities not easy to evaluate, and of legacies with which it is extremely difficult to deal. These legacies made the process of postcommunist€ constitutionalism building even more difficult. The ambiguities are connected with the fact that not only the direct perpetrators, but also, or even above all, the instigators and the collaborators were responsible for the regime functioning, for the entire legal and constitutional hypocrisy, and for social destruction. Moreover, one can argue that the classic law-governed state principle applied to mass scale human rights violations committed by the state officials and their pawns is often toothless and, at the same time, it does not cover all crimes, nor all persons involved in their commitment. The latter€ were those prominent politicians and members of government€ who actually were not torturing or killing. As in the case of the Polish Minister of Interior Affairs, or the general who introduced Martial Law in 1981, they were actively involved in the reform, but had given orders to kill and torture earlier, or were architects of the late Stalinist system. There exists a danger that in all such cases the promise of the law-governed state written into the constitution may seem quite hypocritical and contribute to a fictitious and inconsistent constitutionalism. The approaches taken towards the past human rights violations under the auspices of the constitutional law-governed state principle forced one to reconsider the most burning problem of the constitution and of law: the problem of the symbolic function of the constitution

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also signaled in the Introduction to this book, as well as the moral foundation of constitutionalism after communism, its roots in the moral capital with which these peaceful revolutions were endowed. At stake is formation of a constitutional community and a new, positive€constitutional consensus – the social and political reconstruction of postcommunist societies under democratic governments. At stake, too, is the overcoming of the empty Stalinist constitutionalism. In other words, the crucial challenge postcommunist societies confront concerns the constitution as an element of a hyper-reality composed of systematized rules and principles of formal law, based on the positivistic and narrow interpretation of the law-governed state principle, and therefore not compatible with the unclear, complex, conflict-ridden, and haunted reality of postcommunist society. The contrasting possibility comprises a constitutionalism that helps to overcome the legacy of past human rights violations in a way that bears the symptoms of fairness, of fair treatment of the regime victims, and protects the important rights to truth, to remembrance and to restitution; the latter at least in a symbolic form. With respect to constitutionalism as a part of a fictitious hyper-reality the concept of alienating justice seems to be suitable. This concept is borrowed from the new analyses of Gunther Teubner (2002: 107–32). According to his original idea, the concept of an alienating justice of a legal system refers to “conflict alienation” as an alleged property of law. It consists of the inevitable incongruence of social conflicts and law when the internally developed legal rules and doctrines are exposed to external, i.e., social constraints.30 In light of this “alienating justice,” the 30 ╇ There are many examples illustrating the proposition of alienating justice and the efforts to overcome its consequences by adhering to the formal interpretation of the law-governed state principle. The first case pertains to the verdicts granting restitution of property in kind, but not respected by the authorities. Thus, according to the hearings of the Commission on Security and Cooperation in Europe (see “The Long Road Home: Struggling for Property Rights in Postcommunist Europe,” http: //www. house . gov/csce), governments are consciously limiting restoration of private property independent of comprehensive restitution laws. Such cases have been reported with regard to Lithuania and Slovenia. They are also typical of Poland, especially with regard to compensation of property left beyond the current eastern border. A grand example is that of 50 apartment houses in Kraków which were allegedly given back to their former€owners, but, as it soon became clear, were sold to other persons on the basis of falsified documents and false witnesses with no efforts on the part of officials to investigate. The second case, with respect to Germany after 1990, deals especially with cases of shooters at the Wall. Initial attempts were made to prosecute these crimes on the basis of legality literally interpreted. The proceedings against Erich Mielke, the former head of the Stasi, the GDR secret political police, are a good example. Mielke headed



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law could never solve social conflicts, because it subordinates them to its own formal requirements and thus deprives conflicts of their important social qualities, indeed of all their social, moral, cultural, ideological, and economic characteristics. The law is here presented as a subtle instrumentarium, a machinery for coping with legal questions in its own way via a nearly total separation of law from the society in which it operates. As such, the machinery transforms conflicts into disputes, and then regulates these disputes according to its internal, formal rules (one of them being the rule of internal cohesion). The concept of alienating justice has some relevance where the idea of the rule of law is reduced to “legality” or the Rechtsstaatlichkeit. In other words, the state law is not questioned and the duty of lawyers is to defend legal cohesion and autonomy – its independence from moral, social, political, and economic considerations. If one considers the law as a distinct form of remembrance, because of legal definitions of crimes and of victims, then one has to stress the fact that “alienating justice” is compatible with “alienating remembrance” far from the actual experiences of human rights violation (Markovitz 2001). Therefore, the concept of “alienating justice” as a universal property of law and of Rechtsstaatlichkeit (a purely formal legality) is relevant wherever there is some continuation of law, i.e., where the legal machinery has had time to evolve and produce internal rules of self-reproduction (internal rules which could protect the autonomy of law) and limitation of external influences. If applied to the existing empirical situations, such issues as collective and individual memories, the traumatic individual recollections of the past, trust in law and state, the local knowledge of the system victims, the symbolic aspect of property and property rights have no legal relevance at all. This leads to a very specific, formalized and systematized, yet far from empirical experience, theory of society. Quite unexpectedly, the alienating justice idea and the formal concept of Rechtsstaatlichkeit finds some empirical illustration where concerns with the stability and autonomy of law have resulted in very slow changes of the inherited communist law, and law’s continuity was not put into question. With regard to such issues, empirical research yields much evidence of clashes between the expectations of persons who

Stasi for over 30 years until 1989, but was actually prosecuted only for events related to the killing of two police officers in 1936.

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were regime victims and the legalistic approaches represented by constitutional courts – something aptly phrased as “we expected justice, and received the rule of law.” With respect to property restitution, there were tensions between those who were expropriated of their property under the formerly binding law, with no chances for a just solution subordinated to some “higher” principles than the formal, written law. There are examples of owners who were expropriated of their property by the Nazi occupants. As previously mentioned, those expropriations were legalized afterward by the communist governments because that was compatible with the existing law (i.e., if the property was taken for public use); there are examples of property nationalized because – according to the existing law – it was defined as “abandoned,” with no consideration for the fact that its owners, who were living abroad, for instance, were simply afraid to return having the severe persecutions of others who had done so in mind. There are many other examples that legitimate the deep criticism of the narrow interpretation of the constitutional law-governed state principle applied to past human rights violations. Additionally, adherence to formal legalism would present only a mere facade for the actual big interests at stake; in fact, “alienating justice” leads to “alienating injustice” and to a growing distrust toward new governments and new constitutions as simply another edifice of purely symbolic, declarative constitutionalism: as a foundation of a well-ordered legal reasoning, far from the actual experiences of postcommunist societies, from its (justified) expectations, as well as far from the often brutal reality of political struggle in which the past is used and misused by political opponents. Needless to say, the actual amnesty granted sometimes because of the formal and narrow interpretation of the law-governed state principle could end in actual amnesia: a bad forecast for the process of self-reflection and formation of the constitution as a theory of society within society. The possible solution is more comprehensive and closer to the social reality interpretation of the law-governed state principle, based predominantly on empathy towards the victims of the system, on their truths and their rights to remembrance. This could give the postcommunist constitutionalism a moral impulse and enable the formation of the positive constitutional consensus around some positive values, and directed at human rights protection. As a concluding remark to this chapter, permit me to cite Jeremy Waldron and repeat that past events have moral – and I would add



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constitutional – content for the present, to the extent that the present was shaped by this past (Waldron 1992: 7). To this one can add that the morally important past could give the present an innovative impulse, broadening the list of human rights and supplementing them by novel rights to truth and to remembrance, to reconceptualize the institution of property and of property rights, and recognize its symbolic aspects in order to contribute to the positive constitutional consensus.

Chapter Five

Dividing the Cake: The Constitutionalization of€Economic Order* Whereas reckoning with the past is considered a necessary step in the establishment of moral foundations for new constitutions, the transformation of centrally planned, communist economies presents another crucial component of the new system differentiation from the former one. It has also important moral aspects and implications for the legitimization of the new constitutional order, and contributes to the conceptualization, understanding and interpretation of the rule of law as a leading principle of constitutionalism, too. Because the fundamental difference between the communist and the capitalist economy consists in the type of ownership, then a change of ownership from state to private, and then the protection of property rights function as milestones in the postcommunist transformation. Hence, all of the postcommunist governments decided to privatize the state-owned companies as part and parcel of their constitutional politics. Such a decision is understandable from the strictly constitutional point of view, as a fundamental difference, and a foundation for€ an entirely new order.1 Thus, if a crucial principle of Stalinist *╇ This chapter concerns predominantly economic transformation in ECE, above all in Poland, Hungary and the Czech Republic with some references to other East Central European countries, and only by way of exception to the Russian Federation because of the mere scale of problems, as well as of the country itself. With respect to the Russian Federation we deal with a very different tradition of property rights on the one hand, and a huge wealth to be acquired on the other which presents quite specific problems, barely comparable with these, with which East Central European societies try to cope. In the words of an author investigating the fate of political and economic reforms in Russia, “First, in spite of a common starting point from the exit from communism between 1989–1991, after a decade or so of experience with postcommunist politicaleconomic dynamic, Russia finds itself in a fundamentally different situation from countries in East-Central Europe, including Poland, Hungary, the Czech Republic. These countries have consolidated recognizably democratic and capitalist institutional orders, whereas Russia, at best languishes in a kind of no-man’s land of ambiguous and ambivalent political and economic transformation (Lynch 2005: 183). 1 Many economists, among them the most prominent ones, indicate the importance of government involvement, and also of publicly-owned enterprises for successful economic transformation. Most famously, Joseph E. Stiglitz – former Senior Vice President and Chief Economist of the World Bank – argues the economic success in South-East

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constitutionalism was the nationalization of property (i.e., the deprivation of citizens of private property, the local governments of communal property, and associations of collective property), then introduction of liberal constitutions, and the protection of property rights and economic freedoms was to change such an arrangement entirely: the new constitutions were to outline the cornerstones of a free economy, and establish legal guarantees of clearly defined property rights. The stress was placed upon individual property rights, somewhat contrary to the traditions of these countries: in Poland, although individual property rights were never questioned, a long (reaching back to the 19th century) tradition of cooperatives existed, and social aspects and functions of individual property rights were present in the popular consciousness and debated by prominent lawyers (Pańko 1984).2 Such a long tradition of cooperatives existed also in Hungary and the former Czechoslovakia. It is also worth mentioning the corporatist traditions of the interwar Czechoslovakia – the most illustrative example was the Bata shoe company. Privatization of state-owned property after the collapse of communist regimes in ECE calls for particular attention not only because it meant the creation of private property rights and legal guarantees for their holders, and the creation of entrepreneurs, and of a civic society in the classic sense as composed of free economic agents responsible for use they made of ownership rights, but above all because it brought about a fundamental change of ownership of companies, and other types of property that was once defined as national, i.e., as belonging to the whole nation.3 Another important issue in the debate on the constitution, economic transformation, and positive constitutional consensus formation is the rule of law. In light of a classic, almost canonic argument in the sociology of law, a strong and direct connection exists between the rule of €law and economic success: the establishment of the rule of law facilitates the functioning of an efficient economy. Rational law presents Asia was not only due to the involvement of governments in promoting particular sectors, state interventions in trade, regulation of financial markets, educational and technological policies, but also to the subsidizing of some important enterprises, like steel mills, which generate high costs (Stiglitz 1998: 2). 2 These social aspects of property rights are also reflected in the present constitution, under the general concept of “social market economy.” 3 Definitions of state-owned property as national property, i.e., as belonging to the whole nation were characteristic of all communist constitutions.



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an€ important frame for economic transactions, and its application Â�creates the sense of predictability on the part of economic agents. Indeed, as the famous proponent of this argument, Max Weber maintained, emergence and establishment of a rational legal order and the formation of a law-based political authority were important factors which explained the rapid economic growth of the western world (Weber 1968: 559–587). This argument requires close attention when applied to the reality of€ postcommunist economic transformation. The sheer amount of property to be privatized, and the strong interests involved could make the rule of law toothless, especially if the state is weak. Thus, instead of law-controlled privatization, one observes growing corruption, nepotism and clientelism as important mechanisms for transformation of state into private property. A comparison could be ventured of the privatization of nationalized property after the collapse of communism to the earlier epoch of colonialism when the conquistadors, pirates, or simple crooks participated in the primary accumulation of capital in order to legalize it, and later became prestigious, law-abiding entrepreneurs. In this initial period of conquest, the rule of law could have only a symbolic meaning, far from reality, contributing to postcommunist alienation from the law; the constitutional protection of property rights could often mean protection of rights to property obtained in a dubious, even illegal way. As I am going to argue, under the conditions of postcommunist transformation, the object of a quasi-colonial contest (as stressed above) was – and still continues to be – the state-owned property, and the tool in this conquest has often been the law. In this context, the constitutional principle of a democratic state ruled by law could acquire a quite dubious meaning. There appears a need to differentiate between “good law,” i.e., law that promotes an efficient economy and the legitimate acquisition of property rights, and “bad law” which contributes to transformational pathologies. The key process then centers around law-making, the struggle of vested interests engaged in this process, and the intertwinement of political parties and economic agents in law-making and simultaneous privatization of national assets. This came to be known as political capitalism. The economic transformation did not take place in a vacuum. The important components of its context were left by the immediate past. They consisted of people as holders of social rights and guarantees on the one hand, and of the communist nomenklatura the holders of

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important, although unclear decision-making rights related to state property on the other.4 With regard to social rights, even if their protection was poor, they nevertheless presented an important frame of reference, of evaluation of the economic transformation outcomes, especially of the privatization effects, as well as a test for the constitutional honesty – a promise not to break the laws under constitutional protection. These rights and guarantees of social welfare were part of the popular concepts about social justice. One has to remember that “social justice” was€ enshrined in postcommunist constitutions as a constitutional principle. Popular concepts of social justice composed a myth of a “Sweden,” a widely spread popular representation of a nonexisting Swedish social paradise, a dream or utopia with “…no basis anywhere on the map of Europe” (Dahrendorf 1990: 65). However, as any utopia, dream or myth, the dreams of social protection also bore considerable potential for social action and presented a factor that importantly marked the constitutional politics in the region in the past,€and an important frame of reference for privatization legitimization at present. However, even if they have this “mythical” quality, constitutionally protected social rights comprise an important factor, a “constitutional commitment” in the process of economic transformation (Sajo 1996). The decision-making rights of the communist nomenklatura on the€other hand were a deciding factor at the beginning of this transformation – these rights enabled their holders to participate effectively in its first phase, and became transformed into particular rights of access to the very lucrative process of state economy privatization. During this initial phase, the paths of its further development were also paved, and resulted in the characteristics of the privatization in particular countries. There are also other factors and concepts central for the debating of€social and constitutional aspects the postcommunist privatization. One of them is the popular idea of civil society, another is the popular€conceptualization of the state and its role in the process of transÂ� formation. These rights of decision-making were of considerable importance in a socialist enterprise. Their holders were company managers, representatives of the state treasury, and also secretaries of the local communist party committees. Due to the language of the Stalinist constitutions, and the possibility of interference in economic activity by the communist party nomenklatura, these rights were imprecise and unclear. 4



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As has been pointed out, the fundamental rights on which the Western, but especially the Anglo-Saxon idea of civil society rested was the idea of individual rights: this was an individualistic-liberal conceptualization of civil society, based on the principle of individual autonomy and equal citizenship. In contrast, historically developed in ECE was a communitarian or republican idea of civil society. It appealed to the common good, and stressed the collective rights and responsibilities for the nation on the one hand, and was characterized by organizations of strong interest groups on the other. According to some authors, in East Central Europe, the historical legacy of the relatively un-Â� modernized and organic state never accepted the principle of individual autonomy and equality on the basis of polity, and the civic society there represented an organization of corporate group interests (Seligman 1992: 164). With respect to the Polish constitutional tradition its liberal€ republican character is stressed (Osiatyński 1990). Therefore, the economic transformation based on the definition and protection of property rights took place in this communitarian, collectivity- and strong interest group-bounded context.5 In light of most prominent opinions, at a time of overwhelming economic transformation the government plays a crucial role (Weiss, Hobson 1995). It should be well organized with “…properly trained and remunerated officials, an open legislative and transparent regulatory system, a relentless anti-corruption drive, and effective legal and judiciary system, a well organized and supervised financial system, and a widely available social safety net and social program (Wolfenson 1999: 1). All these components of a good and strong government were€– to a various degree – lacking in ECE.

5 Apart from the vast array of social rights granted in every constitution in ECE, we find in them also a protection of collective property rights. A very interesting example of the latter was the protection of the family farm in the Polish Constitution of 1997. According to Art. 23 of this Constitution, the family farm is the cornerstone of the Polish agricultural order. As for protection of social rights versus the requirements of the public finances reform, see the analysis of the Hungarian Constitutional Court intervention in the reform of the welfare system in that country (Sajo 1996: 31–41). There are two other characteristic features of these constitutions: although in Hungary and Poland there is no special clause relating to societal restrictions on individual property rights, in Poland it is the constitutional principle on social justice that leads to such restrictions in legal practice; in Romania the owner must take on duties assigned to him by custom and law; and the Constitution of the Czech Republic establishes a social obligation linked with property. Moreover, all of these constitutions establish restrictions on the acquisition of land by foreigners and foreign companies.

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Privatization of postcommunist economies started at the beginning of 1990s, at the time of the most outspoken criticism of the active state engagement in economics and of state ownership. Therefore, the calls for privatization of state assets wherever they existed were heard everywhere. As mentioned in the Introduction herein, in the 1980s and early 1990s, privatization of state companies presented a salient part of the then unquestionable “liberal orthodoxy.” Moreover, especially in Poland, but also in other countries under consideration, the popular idea of the state was deeply influenced by the most recent political history of the region, i.e., by the history of the state as a representative of a hostile power and an oppressive political regime, imposed on the people living there by the Red Army after World War II. In Poland, the traditions of the hostile state extend even farther back, deep into the modern history of this nation, to the end of 18th century when Poland was partitioned between its three neighboring empires. Contemporarily, the state is also weak and deeply indebted in Poland and Hungary.6 That despised and weak state had to perform crucial functions in the process of economic transformation. It generally decided on privatization policies, and it had – and still has – a deciding voice in the process of specific cases of privatization, especially those in which a company is particularly important for the national economy (e.g., national banks, social security companies, or – most recently – hospitals). Privatization in the eyes of economists and sociologists As economists stress, debates on privatization are focused mainly on the functional aspects of ownership, especially pertaining to its efficiency; such issues as how property came to be and how it is changing were of minor importance. The aim of privatization is to strengthen the€private sector by forcing private ownership of formerly state enterprises (Engerer 2001: 48). However, for sociologists, equally important are the ways in which private entrepreneurs were created, their social 6 Hungary and Poland increasingly experimented with a variety of economic reforms and in that process opened themselves to Western international credit, which eventually made them two of the most indebted countries of the world, looking at foreign debt per capita (World Debt Tables, 1991–1992). This indebtedness contributed to pressures for regime transition. In contrast, the frozen regime in Czechoslovakia engaged in no economic experiments or reforms and received almost no Western foreign credits.



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characteristics, and the sociological characteristics of the emerging property rights. As previously underscored, in communist constitutions the state-owned property was known as national, i.e., belonging to the entire nation. Thus, privatization of property was strongly affecting the social sense of justice, in this way pertaining to the legitimization of the new constitutional arrangements. The debates on privatization, and the constitutional protection of property rights and economic freedoms almost entirely overlooked the extra-constitutional, more or less spontaneous patterns of owner creation – patterns of making possessors, entrepreneurs, and investors out of socialist citizens, and private property out of the previously nationalized. With respect to Hungary, and also to Poland, these debates ignored the fact that privatization of state enterprises started well before the democratic change. To this issue I will turn later in this chapter. Additionally in Poland, the change was not only initiated by agreements between workers at these state companies and the representatives of the communist government, but this preceded the major political event of the Round Table Agreement in 1989. In fact, it commenced with the Law on Economic Activity proclaimed in December of 1988, as well as changes in the Civil Code in 1989. The first opened the way for private economic activity, the second for ownership transformation of state enterprises or their parts, i.e., for their sell-out to private persons. These were the legal frames within which the spontaneous processes of state-property acquisition were initiated – processes dramatically affecting the communist system. On the other hand, the political agreements – especially the first historical Gdańsk Agreement of 1980 which became known as a “social constitution,” the foundation for future postcommunist constitutionalism (Kurczewski 1993) – were almost entirely focused on political transformation and social rights, and, with respect to ownership of the state-owned companies, envisaged a form of collective ownership.7

7 Collective ownership rights were strongly recommended even by the later adherents of state company privatization. For instance, some forms of collective ownership like ESOP as well as worker self-management in companies were debated as suitable for state enterprise reform by the students and colleagues of Leszek Balcerowicz in Poland, author of the so-called “shock-therapy” at the beginning of the 1990s in Poland. According to Balcerowicz, those early debates of the late 1970s and 1980s were based on the assumption of “realism,” i.e., they would not propose a system based on the dominant private ownership “…even if the majority of us did not have doctrinal prejudices in this respect” (Balcerowicz 1992: 11).

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A burning question arose after 1989. It concerned the contribution of state property privatization to liberal constitutionalism under circumstances of an unprecedented experiment, the already mentioned weak and indebted state and therefore, a weak law enforcement, not to mention the simultaneity of political, economic, and social reforms. The emerging answers to this question became germane in the formation of a “living constitution,” or a constitution in action, of those constitutional norms and principles as interpreted and applied. At stake was compatibility between the written document rhetoric of private property protection, and the mundane, daily-life practices, and patterns of behavior of participants of the ongoing spontaneous privatization. All these questions lead to the most crucial one on the contribution of new constitutions and the practices of involved actors to the€ formation of a new, positive social contract after the collapse of communism. In the reality of the postcommunist economic transformation, the not fully intended or foreseen consequences of privatization became soon visible. In all new democracies in East Central Europe, one obserÂ� ves mixed and ambiguous phenomena of economic success but also, of large-scale unemployment; of considerably successful fiscal reforms but also of growing corruption; of emerging mixed and unclear forms of property rights, known as “cross-ownership,” “institutional ownership,” “recombinant property” or “cascades” ; of siphoning out the resources from privatized companies in order to transfer them to individual bank accounts of the new “investors” (a process charmingly called “blowing out an egg” in Poland). In the latter case, what is left is empty inside, in other words, a “blown out” company is left without resources, and its employees without jobs. As economists have argued, the unintended results of the changes implemented under the postcommunist governments has been that property rights, already greatly diluted, have become even more confused, creating a sort of “property vacuum” (Poznański 1993: 4, 32–33). It was – and in many cases still is – also a time of such practices as selling out privileged shares to the members of the former communist party officials and their families in a closed offering, and then selling the rest of the shares in an open offering for a much higher price. Such an operation enabled the first buyers to make a lot of money at the price of the general public, companies or state subsidized institutions. In Poland, such was the case of the Polisa insurance company which first sold its shares in a closed offer to the family members of the most



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prominent former nomenlactura. After this, the Polish Rehabilitation Fund – a semi-public institution responsible for subsidizing physical rehabilitation for disabled persons – was forced to buy Polisa shares at a much higher price. This opportunity was used by the first buyers to sell their shares to the Rehabilitation Fund, making a lot of money in a simple operation. To this category belongs also the tricky sell-out of the Polish Gdańsk shipyard, the legendary and symbolic cradle of Solidarność, to a Ukrainian company.8 Thus, as an investigation of the economic transformation in East Central and Eastern Europe reveals obstacles in the economic progress (and, in our case, to a positive constitutional consensus formation) stemming from enterprise insiders who have become new owners – be they commercial bankers, local officials, or so-called “mafia” – only to strip their firms. According to Joel Hellman, who conducted such research, these groups have siphoned off gains from the transition up for grabs (Hellman 1996). The above observation regards, above all, the reforms in Russia, but to some, differentiated degree they are true also for the rest of the transition economies. Even the highly appraised rapid Czech privatization had its dark sides. As we read, the public there learned that some managers of the funds designated for the Czech voucher privatization program in which all Czech citizens had a chance to participate, were instead systematically stealing from their own investors. One of the techniques described in Transition, the World Bank newsletter about reforming economies, went as follows: the investment fund managers sell company shares in the portfolio to dummy companies at absurdly cheap prices. The dummy companies sell these shares on the market, depositing the ensuing profits into overseas bank accounts. The fund investors (the trusting public) are left with nothing (Schwartz 1997: 4).

8 The cases of Polisa and the Gdańsk Shipyard described present only two illustrations of many illegal or semi-legal practices of enrichment because of the imperfect law and the great opportunities opened by economic transformation, and also due to a weak state controlling the deficits. In the Czech Republic the disappointment with economic transformation was also due to the news that dishonest operators have systematically squeezed the assets from many of the country’s best companies, its municipalities, and its banks (private and state-owned). The Czech have coined a euphemism for this€– “tunneling,” accomplished by “tunnelers.” As seen, tunnelers have achieved their wealth primarily via corrupt collusion or, at the very best, the benign neglect of the state (Schwartz 1997: 4).

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One of the unforeseen or overlooked consequences of postcommunist privatization is the above-described political or “crony” capitalism, and the growth of political-economic clientelism, i.e., the emerging peculiar constellations of interests, of networks and connections composed of high ranking politicians and businessmen. These networks €are, in turn, used for further siphoning out the still existing, considerable state-resources. As it was observed with respect to Poland, such constellations and networks have a great reproductive potential (Gadowska 2002); they result in the oligarchization of the national economy – here the “symbiotic” links between the state and the economy are crucial (Morawski 1998: 78) – and they threaten the foundations of the liberal market, namely its transparency and its ruling principle of free competition. Finally, it is the reality of strong interest groups. Such phenomena challenge the possibility of the positive constitutional consensus – the foundation of liberal constitutionalism and the rule of law. In Poland they result in occasional outbursts of popular resentments, “moral revolutions,” and calls to revise privatizations or to dispossess the new owners of real estate acquired via corruption or manipulations with stock and bonds.9 Elsewhere, as in the Czech Republic, such popular resentments are reflected in the considerable popularity of communist party, or the growing support for populistic ideas observed in the region. In Russia – which is not a part of this analysis – they are illustrated by the trial of the businessman, Mikhail Chodorkovskij as a warning to other “new business people.” Bearing these phenomena and processes in mind, in the remainder of this chapter I will develop five arguments on the implications of privatization for the emerging postcommunist constitutionalism. In light of the first of them, liberal constitutionalism after communism depends not only on property rights and their guarantees enshrined by the constitution, but also on the spontaneous and only partially legalized

9 “Moral revolutions” were not only popularly proposed in East Central European countries. These should include reviewing contracts with foreign companies or renegotiating some privatization agreements – a postulate formed in Hungary at the end of the 1990s, before the elections in which the ruling socialist party unexpectedly lost, and the Alliance of Young Democrats (FIDESZ) won; renationalization is the constant refrain of the Czech Communist Party as well as of the Slovak populists. In Poland, “moral revolution” and “economic lustration” were the slogans thanks to which the populist conservative party “Law and Justice” won the 2005 election. However, the postulates of “moral revolutions” understood this way are not strong enough to be realized, or to secure long lasting power for their political adherents.



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arrangements that were crucial for the formation of some preconstitutional rights, here called “access rights” to participate in state property privatization. These access rights were of a pre-constitutional nature because they underpinned the economic transformation from its very beginnings, and created owners and ownership structures before the processes of democratization started. In light of the second argument, the process of privatization is initially illegal or semi-legalized, and because of the utmost uncertainty and the entire unpredictability of the results of particular institutional arrangements, the economic transformation depends on local and spontaneous practices, and on local cultures and traditions, which absorb the risks in the existing circumstances and promote personal engagement, i.e., contribute to personal profits, legal or illegal. Due to that, and also to the already established access rights, one observes a considerable differentiation of the economic transformation paths, under fairly similar constitutional protection of property rights and ownership guarantees in the particular countries discussed here. In light of the third argument, the development of political networks and connections, a form of political capitalism characterizes the paths of economic transformation after the collapse of communism in ECE. This was independent of the differentiated privatization institutional arrangements, instead of the “democratic” or a “civic” capitalism legitimized in popular expectations and compatible with the classic concept of civic society. Such phenomena challenge most seriously the rhetoric of postcommunist constitutionalism. Therefore, in light of the fourth argument, the constitutionalization of economic transformation in the form of property rights definition and protection comprises a dynamic process taking place in the context of economic freedoms and liberties embodied in the new constitutions on the one hand, and the unofficial spontaneous practices, rules of cooperation and cooptation, and constellations of interest groups on the other. Finally, as a consequence of the tensions and possible contradictions between economic freedoms, liberties, and constitutional protection of property rights, and the daily life practices of property acquisition, the postcommunist constitutionalism faces the danger of distancing itself from the real social processes. This, in turn, has implications for a positive constitutional consensus formation. To illustrate my arguments – after a brief outline of the model approaches to economic transitions and their constitutionalization,€i.e.,

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to privatization of state property – I will sketch the patterns of owner creation and describe some of the spontaneous practices and institutions that led to differentiation of the transformation in ECE. Then I will turn to the social processes set by the first efforts to reform€ the economy by privatizing state property in order to debate the€emerging forms of capitalism, and the discrepancies between constitutional protection of property rights, social expectations and real-life processes. Institutional optimism and sociological realism Even before the collapse of communism in Europe, many scholars and political commentators both in the East and the West had expressed opinions on the best models of state-economy transformation. Proponents of radical change advocated limited constitutionalism, because the market and clearly defined property rights were considered as the exclusive means of regulating an economy. Along these arguments, a neo-classic model has been heralded as the “one royal road to rational decision making” (see, critically, Klare in Alexander, Skąpska 1994: 310 ff). Such arguments were stressed even more strongly after 1989, when the economic transformation coincided with€ the proclamation of postcommunist constitutions. This raised the€critical issue of the optimal steps to be taken, i.e., how the newly liberalized states might simultaneously institutionalize both the rule of law and€economic reform. In this respect, contrasting models of the relaÂ� tionship between a liberal constitution and property rights were presented. Especially with this regard, the constitution was seen as the precommitment strategy (already discussed here), while clearly defined and protected property rights, ownership guarantees, and economic liberties were seen as preconditions for a liberal constitution and the rule of law. Therefore, at the transitional stage between the state-owned and the free economy a radical withdrawal of state intervention and protection was strongly advocated. The issue of limited constitutionalism was also (although vaguely) debated. As an empirical corroboration of such a model of limited constitutionalism, the economic success of the Chilean reforms introduced during the first years of the Pinochet government, as well as East Asian ways of building capitalism under military dictatorship, as in South Korea, were quoted as examples of a successful economic transformation and modernization.



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From the perspective of the Chicago school, informed by neo-classic institutionalism, postcommunist constitutionalism must consist of constitutional engineering from above. This then must be based on a clear relationship between property rights, economic liberties, and the rule of law. The accent was placed on constraints to which the citizens of new democracies should subordinate themselves in order to create a free and effective economy and, at the same time, to protect the rule of law as the fundamental requirement of liberal constitutionalism. Thus, Cass Sunstein argued for a clear-cut definition and effective protection of negative rights as a cornerstone for a postcommunist liberal constitutionalism (Sunstein 1993a; 1994: 225); Jon Elster also famously developed arguments that there exists a clear, self-perpetuating and self-reinforcing connection between the rule of law, constitutionally protected property rights and economic liberties, and economic growth. Protection of some democratic rights, on the other hand, could have a prohibitive effect on both: on economic growth because the democratic electorate would be more interested in the redistributive functions of law (i.e., in the protection of social rights and social guarantees) than in economic growth; and on the rule of law, because redistribution could inhibit the protection of constitutionally guaranteed property rights, not to mention economic liberties (Elster 1993;€1996b).10 Therefore, authors who defined postcommunist constitutions as precommitment strategies imposed on society from above in the form of a well designed and, if needed, limited constitutionalism, argued that citizens should constrain their democratic rights and freedoms in order to restrict the range of future action which can be disadvantageous for property rights and economic liberties, eventually challenging not only the economic reform, but also the rule of law as well. Contrasting arguments were raised, however, by adherents of such versions of liberalism according to which democracy comprises a necessary condition for successful economic reform in general, and 10 ╇ It was Jon Elster who pointed out tensions and contradictions between and the introduction of an efficient economy and democratization, between the introduction of liberal, individualistic principles and the protection of group rights and solidarity which is the case of postcommunist societies. However, in these societies, and in the already democratic environment, protection of social rights may induce policy-makers to prefer consumption (Elster 1993). Thus, according to this author, the “…precommitment, to be credible and effective, needs democracy: the possession and exercise of political rights” Elster 1996: 355). Additionally, protection of political rights should be supplemented by protection of civil rights, because civil and political rights “…are needed to underwrite credibility” (Elster 1996: 359).

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postcommunist transformation in particular. In light of them, protection of property rights and economic liberties without simultaneous protection of democracy will not promote, but rather inhibit liberal constitutionalism, and above all inhibit the possibility of positive constitutional consensus (Dahrendorf 1997b). Such arguments on the importance of democracy find support in an observation made by Amartya Sen that no substantial famine has ever occurred in a country with democratic control of the government and a free press (Sen 1994: 31, see also, with respect to ECE, Elster 1996b: 351). Moreover, according to Ralf Dahrendorf, democratic as well as social rights are the imminent components of modern, democratic capitalism, and a means to avoid a potential social conflict whose effects could be devastating politically, economically, and socially. In particular, Dahrendorf stressed the rights to democratic control as important means of controlling the mechanisms and processes by which power over the acquisition and distribution of public resources has been obtained and maintained – sometimes known as “stealing the state” – and social rights as limiting the spheres of social exclusion and the formation of an underclass. Both of those phenomena – “stealing the state” and the emerging underclass – were seen as inhibiting economic growth, not to mention the formation of civil society. They contribute to the growing social gap, to cynicism on the one hand and apathy on the other – the anomic effects of rapid social change. As also noted, people whose most fundamental social rights are not protected do not exercise their political rights; they do not take part in democratic elections which, in turn, enables those for whom the economic transformation offers a means of enormous personal enrichment to stay in power. In his book on modern social conflict, Dahrendorf described a conflict between the ideology of growth and innovation, and fears of the disastrous effects of political, economic, and social exclusion, as characteristic of the contemporary world. He argued for vast popular participation in the decision-making processes, i.e., for more effective protection of democratic rights, as well as for protection of basic social rights as a necessary means against social exclusion and civic passivity (Dahrendorf 1997b: 75). Therefore, this author opted for a social market economy model as recommendable for the success of economic transformation under democratic control. Other authors stress the importance of the democratization of capitalism as a means of creating a civil society – in an economic



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sense – out of a postcommunist society. These arguments refer to such forms of capitalism which consisted of popular engagement in the economy of small or mid-sized companies (e.g., the so-called “Rhein capitalism” in Germany), in all forms of cooperatives, and also in the broad access of employees to the bonds and shares of big companies. All of these forms of capitalism – known as democratic or civic – are characterized by the broad distribution of property rights and also of entrepreneurial responsibility and, with regard to broad access to significant shares, of some entrepreneurial responsibility at least. All of them reflect the already mentioned, classic idea of civil society as composed of self-dependent and economically active agents (Lewandowski, Szomburg 1989; Skąpska, 2002: 15).11 Whereas the model of the social market economy is based on a conviction that social security, and therefore the constitutional protection of social rights contributes to broad democratic engagement and prevents passivity, the model of democratic capitalism rests on another basic conviction that far-reaching distribution of property rights would create economic agents and a middle class out of the former employees of state-owned companies. In this way, it would contribute to the positive constitutional consensus and, therefore – if realized – enhance the democratic liberal constitutionalism, and place limits on such negative phenomena and processes as the oligarchization of the economy. These arguments seem to be rooted in an optimistic conviction that history could finish well if only it would be rationally designed by informed and skillful politicians devoted to the main goal: the creation of an effective and free economy under the auspices of liberal constitutionalism. This in turn would reinforce the rule of law as a necessary condition for a functioning free economy. In contrast, the pessimists stress an imminent and devastating conflict of interests whenever the possession of goods is at stake. They emphasize the struggle of the powerful interest groups which try to extort resources from each other as endemic to the modern capitalist 11 ╇ In light of the empirical research conducted in Poland on the economic culture of that society, traditionally the Poles are much in favor of capitalism based on an ownership of small companies, and are very much in disfavor of great income and wealth discrepancies (Bukowski 2003: 167ff). Similarly, also the Czech society is critical about great economic disparities, and this criticism grows – explained, among other things, by a revival of the egalitarian ideology, deeply rooted in the Czech history of the 19th century when the society was practically reborn from plebeian traditions (Vecernik, Mateju 1999: 132, 133).

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economy, notwithstanding the constitutionally guaranteed rights, and oblivious of rational constitutional design. These statements are even stronger if their object is not merely possession, but acquisition of vast amounts of national property. As an important intervening variable, clearly visible in all postcommunist countries, one has to point to the weakness of their governments, their lack of resources for the efficient implementation of law,€ and the protection of the rule of law and constitutional rights and€guarantees under circumstances of overwhelming social change. Protection of the rule of law as well as of negative rights and liberties is quite costly, and even, especially, the limited liberal state must possess the necessary financial resources to be effective (Posner 1995: 71–83;€ Holmes 1999). These were quite scarce after the collapse of communism. In light of these pessimistic arguments, there is slight possibility for the reconciliation of strong interests, the rule of law, and liberal democracy when the possession or acquisition of goods is at stake.12 Strong groups abuse their position of power in order to enforce the rules which are in their interest, and not necessarily instrumental for economic effectiveness. In this vein, in an interview with a Polish author, John Gray discusses his idea of a “New Hobbesian Dilemma” instead of the happy “end of history” heralded at the end of 1980s (Gray 2002; see also Gray 1993). Gray’s view is based on his newer analyses of the recent developments taking place not only in postcommunist Europe, and is strongly informed by Karl Polanyi’s criticism of an unprotected selfregulating market (Polanyi: 1944). Gray argues that the state becomes prey for influential interest groups who use it to extort resources from other groups, who in turn undertake self-defense activities. Hence, common rivalry in exercising control over state resources is unavoidable. This new Hobbesian dilemma is unsolvable, too, and impossible to eliminate, either by means of a limited constitutionalism imposed upon society, or by the constitutional regulation of access to state

12 ╇ In his most significant work, The Theory of the Leisure Class (first published in 1899), Thorstein Veblen maintains that ownership is created by a change in the ways of thinking, and not rational design; it is to demonstrate the social hegemony of the upper class and leads to sabotage of affluence in society. In contrast, for instance to Locke’s theory of property rights, Veblen argues, “Whenever the institution of private property is found …the economic process bears the character of a struggle between men for possession of goods” (Veblen 1953: 34).



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resources by constitutional methods, or, as Dahrendorf would like, by€ protection of democratic participation in legislation. Instead, the slow crafting of conventions and traditions, spontaneous processes€ stemming from the existing civil society are recommended as the€ only possible way of establishing liberal constitutionalism, and simultaneously an effective economy in the contemporary world (Gray 2002: 69). In order to break the vicious circle of economic ineffectiveness, protection of vested interests, and possible rule of law violations, Gray proposes not conscious designs from above, but rather the microrationalities of the involved actors who would craft institutions within the existing constitutional arrangements, outside them or even against them. Thus, it is not the protection of constitutionally guaranteed property rights, but, above all, the creation of owners in the form of specific access rights to state property that marks out the process of transformation after the collapse of the centrally planned economy. Such an opinion on the relationship between liberal constitutionalism and economic reform is also compatible with the approach of David North mentioned in the Introduction to this book, and finds strong support among sociologists of law or sociologically-minded lawyers. This is generally because individuals and organizations have first of all to learn the use of new institutions and to develop them to their own advantage, as well as develop informal constraints in order to complete and extend the formal rules (North 1991: 92 ff). That leaves only a single option for the slow learning and crafting: the formation of a grassroots constitutionalism, an organic development of constitutionalism “from below,” supplementing the proclaimed, written constitution. This would present a path to effective transformation also with regard to economic reform, i.e., the effective transformation of the state-owned and centrally planned to a market economy within a framework created by formal institutions (or in their “shadows” ) by actors engaged in the economic game (Skąpska 1999: 149, 168–171). Formation of a grassroots constitutionalism is of special importance at the beginning of the transformation, auguring its further development. It is important for a positive constitutional consensus which Â�consists – roughly speaking – in the compatibility of social expectations, hopes, and ambitions with the content of constitutional provisions. Having this in mind, it is not only the protection of constitutionally guaranteed property rights, but first and foremost the shaping of owners that marks out the processes of transformation after the collapse of

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the centrally planned economy. One can only agree that simple deregulation would be insufficient, and that initial distribution of property rights would not be of secondary, but of primary importance (Hedlund 2001: 48). Such rights present a crucial factor in the structuring of a postcommunist transition, and have an important effect on the nature of postcommunist constitutionalism, enhancing or inhibiting the possibility of constitutional consensus formation. Typically, those access rights were almost entirely overlooked by constitutional lawyers and economists who analyzed the economic reforms after the collapse of communism: private property was simply taken for granted as a functional means to economic success, and the free market as well as deregulation, inspired by the views of Adam Smith and Ronald Coase, would in and of themselves lead transformation in the right direction: optimal utility and efficiency. Thus, as has been observed, with regard to the mainstream debates, “…the modern point of view narrows the contemplation on private property to the functional, time-related aspects of already existing private property.” Such a view is characteristic not only of economists, who place the extent of possible disposition in the focus of interest, but also of lawyers, who are “…in the habit of characterizing ownership by analyzing to whom the already existing goods belong as of right…” (Engerer 2001: 12). Thus returning to the brief outline of privatization in East Central Europe, important for the traits of grassroots constitutionalism and its€compatibility with the written constitutions are the paths towards creating ownership, and the characteristics of the main players in this€ process. Considering this past, especially the most recent one of€dissident movements, the formation of civil society with its unique qualities (i.e., the importance of ethics and neglect of economics), considering the 1980 Gdańsk Agreement in Poland, and the round table agreements in Poland and elsewhere, there are several possibilities for shaping grassroots constitutionalism. Of these, two are of particular relevance. The first reflects the wishes and expectations of the civil society whose main goal was political democratization and (in the domain of economic transformation) the creation of democratic capitalism. The second possibility emerged as a result of processes of economic change before the first democratic elections, dominated by the “foxes” mentioned in the Prologue to this book, and by the strong interest groups participating in the “modern conquest” who would use their political position, networks, and intertwined connections to win in the process



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of “dividing the cake” and take the best parts of it. Here the formation of political capitalism after the collapse of communism would be decisively relevant for the grassroots constitutionalism formation – compatible with the real phenomena and processes, and incompatible with the expectations expressed in constitutional provisions. The latter would, in turn, contribute to the specific alienation of society and its constitution and inhibit the molding of a positive constitutional consensus. All of that is important for constitutional semantics, too: the honesty of statements inherent in constitutional provisions. Therefore, concluding this section, one has to first underscore the mentioned interplay of conscious design from above and spontaneous processes from below as constitutive for the relationship between the proclaimed, written constitution, and the real economic arrangements. Secondly, it is to be emphasized that privatization of state property did not take place in a void, outside historical context. On the contrary, the real space has its structure and inhabitants – strong and resourceful individuals and collectivities – and the historical contexts (the legacies of the past, especially of the most recent) were critical in the range of possibilities, options, but also limitations. Anarchy, semi-legalized anarchy, and blurring the line between state-owned and private property Mass scale privatization of property and full scale introduction of a market economy were not considered the most important objectives of the negotiations at the round tables, at least on the part of the dissidents. Thus, as described in the Introduction to the now historical essays written by the most prominent Czechoslovak dissident, “None [of these essays] advocates a return to capitalism or even a liberal democracy; and none is touched by the various forms of free market ideology that at that time became dominant in the Anglo-Saxon West” (Lukes 1985: 14). In contrast to such popular attitudes and convictions, the privatization of state-owned economy already began, and the creation of new owners of former state-owned property was well under way, at least in Hungary and Poland before 1989. Taking this issue of then popular ideologies, attitudes, and real-life processes, the author of an insightful analysis of privatization in East Central Europe demonstrates the incomplete and indeed ambiguous support of neo-classic approaches – especially popular among lawyers

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and economists at the beginning of the transformation – for the privatization of the state-owned economy after the collapse of communism (Engerer, 2001: 48–57). Instead of the abstract, a-historical, and static conceptual models presented by adherents of neo-classic institutionalism, Hella Engerer debates the different privatization paths in the discussed region and recommends reconstructing the owners, and the emerging path dependencies in the process of state property transfer into the private sector and, more precisely, the process of enfranchisement on the state property of its new owners. In this respect, analyses of economists are supplemented by sociologists who, with regard to Hungary, demonstrate how the formation of capitalism took place not on the ruins, but with the ruins of communism (Stark 1992). What emerged was a bricolage composed of Â�elements of the former system, i.e., state-owned enterprises, the new, liberal one in the form of companies privately owned, and the dominant mixed forms of an entirely innovative character, including what came to be known as “recombinant property” (Stark 1995, 1996; Bruszt, Stark 1998). Other authors emphasize the postcommunist networking composed of former communist cadres, secret police agents, and the black marketeers comprised more realistic, sociological characteristics of such a bricolage (Ganev 2000: 101ff; Tucker 2000: 107ff).13 One should add that the networks were importantly expanding in the process of state-property acquisition by the cooptation of the most resourceful and successful participants representing other than postcommunist, political options. Independent of the shortcomings, two analytical concepts offered by proponents of a broadly understood neo-classic approach are of considerable significance for an analysis of the emerging preconstitutional arrangements. They are the concepts of anarchy and of contract,

13 ╇ However, the excellent research by Bruszt and Stark was subjected to a strong criticism, This criticism regarded, above all, the nature of postcommunist networking, and the too idealistic assumptions of the authors that postcommunist networks would ethically develop and transform themselves into public good oriented entrepreneurs. In a debate on postcommunist networks, Venelin Ganev and Aviezer Tucker point out that those networks do not comprise a specific form of social capital, but rather a danger that could derail the process of economic recovery by preserving their privileges at the expense of society. Moreover, Ganev points to some schemes used by the postcommunist nomenklatura in Hungary, and specifically to the effect of the exclusion of the rest of society in participating in privatization (Ganev 2000: 102, 103; Tucker 2000: 107–112).



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proposed by Buchanan and Tullock (Buchanan and Tullock 1962; Buchanan 1975). To these analytical concepts one should add others: the concept of anarchy semi-legalized, and of blurring the line between state and private ownership as characteristic of the transformation in Eastern Europe. The latter results in state property erosion and occurs under circumstances of the economic transformation with the old regime and old constitution still in effect, albeit with the introduction of some newly legalized arrangements which promote the privatization of state assets and liberalization of the economy – a semi-legalized anarchy. The final stage of the preconstitutional phase in economic transformation forms the contract between the major players. The contract itself presents an initial step in the constitutionalization of the new economic order, meaning, among others, its “naming”; this entails finding the conceptual framework for the new economic regime written into the new constitution and statutes. The concepts of anarchy, of semi-legalized anarchy, of blurring the line between the state-owned and private property, and, finally, also of the contract are useful for an analysis of property rights acquisition with regard to the primary attempts to reform the state-owned enterprises: the so-called spontaneous or “crawling” privatization. One has to remember that at this stage the constellation of big player interests€ contributed to the contract on political reform. The concept of a€ semi-legalized anarchy works in investigating the currently ongoing€processes of the privatization of the still-existing state sector – e.g., the already “crawling” or “spontaneous” privatization of health care in€ECE. Having the above in mind, one can distill four overlapping, and often contradictory processes that contribute to the constitutionalization and legalization of the economic order after the collapse of a communist regime. The first of them was initiated before the democratic elections took place and the new constitutions were proclaimed or old ones amended. At this stage of economic transformation the first, important access rights to participate in the privatization were defined and legalized, and important interest constellations were crystallized. It was a stage of anarchy, or an anarchy that was semi-legalized during which state property became the prey of powerful political actors and their clients, insiders of the political system. The second was initiated by the€round table agreements, and led to further and more comprehensive definitions of access rights, and to the constitutional protection of€ property rights. At this stage the most important constitutional

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guarantees were encompassed by the new constitutions, and the new laws on privatization of state property were proclaimed, notably regarding privatization of the big, state-owned enterprises, and the so-called “small” privatization. Therefore, as was debated above, as a result of the RTs, the foundations of the ownership structures after the collapse of communism were laid out. The next was a stage of consolidation of ownership structures, and finally came the stage of adjustment to new circumstances and the grasping of still existing possibilities and opportunities. All the stages of economic transformation were, and still are, accompanied by the not so very visible, indeed subcutaneous, mundane transactions and arrangements of rational and innovative economic actors – the newly created entrepreneurs – coping with the risks and challenges of the change. All of the mentioned processes – the preconstitutional formation of access rights, the legalization of those rights in the form of laws on the privatization of the big and small state companies, the further consolidation of ownership structures, and the processes of spontaneous adjustments and innovations – have proven to be important for the constitutionalization of the change of the economic system because all imparted meaning to constitutional guarantees and principles concerning property and property rights, not to mention the very principle of the rule of law. Thus, as noted earlier, the initial attempts to reform the centrally planned economy were characteristic of the late 1970s and the 1980s. In those early stages of economic transformation, Hungary led the way in Central and Eastern Europe as far as the legalization of private economic activities within the state sector was concerned, under the motto of market socialism. Another justification of those attempts in Hungary was represented by the creation of consumer society, nicknamed “goulash communism.” In particular, the first moves to reform the planned economy in that country entailed the transfer of rights to use and profit from the still state-owned property by individuals and groups in afterwork activities, legalization of private economic activities on the fringes of the socialist sector in the fields of trade and services, and leasing of state or cooperative assets, small shops, and restaurants to private agents. These new forms of entrepreneurial organizations were allowed, established outside the company or inside it, in the form of enterprise contract work associations, as well as founding of private small cooperatives and the creation of specialized sectors within existing cooperatives. The predominance of so-called inside teams (60 percent of the



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approximately 330,000 small businesses in Hungary in 1986, cited in Engerer 2001: 87) characterized that early stage of economic transformation in that country. Next to the legalization of such changes within the socialist sector€before the regime change, “juridical imaginativeness” and a “new legal instrumentalism” enabled the transfer of some property rights to€ managers and employees of companies within the socialist sector in€ Hungary (Sajo 1990; Stark 1993; Bruszt, Stark 1996: 35; Engerer 2001: 120). In Poland, spontaneous privatization received a green light at the end of the 1980s, which resulted in establishment of small private firms out of state-owned ones, but also in selling off very cheaply of whole enterprises or their parts, mostly to political cronies. The same process takes place currently with regard to spas as well as hospitals. In Poland, the establishment of limited liability companies on the basis of the Commercial Code of 1934 has been possible since 1985, and changes to the Civil Code in 1988 enabled the sell-out of parts of state-owned enterprises to private persons or companies. Furthermore, the 1989 Polish law on economic activity established that, as far as taxes are concerned, state and private enterprises must be treated equally and that both should have the same access to bank loans and means of production. This law additionally allowed every citizen to establish a company€ without having to apply for a state concession; the Act on the Transformation of Economic Organizations and Economic Associations in 1989 created the formal basis for a new company law, and freedom of trade was introduced in 1990. As a result, more than 18,000 private businesses were established in Poland before 1989 (Sobczak 2002: 37). Legalization of spontaneous privatization consisted also of an earlier€ legalization of entirely illegal activities.14 Additionally, expansion of the so-called black economy became a public phenomenon (Skąpska 2002: 78). If, according to Buchanan, at the beginning of the transformation, the old, still valid laws are frequently obsolete, then a temporary phase begins in which involved persons act according to a situation of anarchy (Buchanan ibidem: 23). The heart of it was often – and with regard 14 ╇ Due to bank reform in Poland, Polish citizens could establish personal bank accounts in hard currency, even if the source of the money was illegal. In order to do this, citizens declared to Polish customs officials the hard currency they were bringing into Poland even if it had been illegally obtained (see Skąpska 2002: 25).

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to the above-mentioned, existing state sectors still is – nothing less than rapid transfer of state property to political cronies and clients of the communist nomenklatura, and currently to political cronies and clients of the current governments. Thus, before privatization was officially heralded as a way to transform the economy, in Poland and Hungary employees of the state-owned companies – and, above all, their managers – transferred resources from the state sector into their own hands; this was often accomplished on the legal borderline and sometimes illegally. Spontaneous privatization was a mere continuation of the already ongoing property erosion that increasingly blurred the line between the state sector and the private sectors (Engerer 2001: 119). Characteristically, in ECE, especially in Poland in the 1980s, the situation of anarchy – or rather a semi-legalized anarchy because the transfer was at least partially legalized – was considered a key framework for the primary capital accumulation in societies almost entirely deprived of any financial means and opportunities to engage in the market economy. The state of semi-legalized anarchy accompanied the above-mentioned “creation of capitalism without capital” (Poznański 1993: 2000).15 There were also visible pressures for legal frameworks considered important for further economic activity of newly emerging economic agents. As a consequence, changes of civil and commercial laws, and important amendments to the constitutions were introduced in order to protect individual property. Indeed, as the analysis of economic transformation in Russia is compared to the same process in East Central Europe, one of the crucial factors in the economic transformation, responsible for a deep difference between the Russian and ECE€privatization paths has been a greater demand for law and rules in€ the latter, and the formation of legal frameworks situated in local 15 ╇According to Kazimierz Z. Poznański, political events in Poland, especially the post-1989 shift of power within state companies from managers to workers, creating a “peculiar vacuum” with respect to property rights and decision-making power. In this situation the managers developed a strategy of abandoning the enterprise, except for a healthy, manageable piece of it that they wished to acquire either for themselves or to hand over to a resourceful partner in exchange for retention of their position. In any case, according to Poznański, it makes perfect sense for managers to run the capital down since that lowers the purchase price for these entities. However, not only managers, but also factory workers themselves are interested in decapitalization, and they were closing their eyes to massive sales of equipment in order to cover wages (Poznański 1993: 32–33). The same practices can be observed presently with regard to the privatization of hospitals and spas.



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circumstances as well as local legal traditions in such countries as Hungary or Poland, and later also in Czechoslovakia (Lynch 2005: 173–185; Pastukhow 2002: 67–69; Hendley 1999: 89–95). Notwithstanding the demand for law – the established networks and€connections, as well as informal rules of the game that had been formed during the opening stage of spontaneous privatization of stateowned property – proved persistent. Because these processes resulted from political decisions, they contributed to pathologies in the public sphere in postcommunist countries, i.e., the very sphere in which constitutional cultures and legal cultures are formed (Kamiński, Kamiński 2004). These initial phases of privatization were variously evaluated, depending on the type of privatized property in the countries under study herein. Efforts aimed at privatization of state property enabled the socialist citizens to participate in the overall successful small privatization of restaurants, shops, and small companies, contributing to democratization via considerably wide dispersion of ownership rights (Earl, Frydman, Rapaczyński, Turkowitz 1994).16 However, with regard to the bigger sell-outs, these initial phases of economic transformation were described by sociologists as a transfer of property from€“the plan to the clan,” i.e., from the state to some individuals, groups and organizations consisting of the former communist party apparatus, directors of the state-owned enterprises nominated by the communist party, and secret police agents, creating entrepreneurchiks (the English

╇ There are two ways in which a wide dispersion of ownership rights is possible. One can introduce a program for mass privatization, or, secondly, do a so-called small privatization. In Poland, mass privatization was modeled on the Czech voucher program, but with only 500 companies be privatized in this fashion. This proved to be a complete failure because the real value of the stock was much higher than its nominal value. Therefore, people who bought the vouchers sold them at once at a profit in the nearest bank. Another question concerns the real participation in the mass privatization programs. Even in the most democratic mass privatization of the Czech Republic, the kouponovka, only a minority of citizens decided to invest their voucher points individually, while the majority invested through the Investment Privatization Funds,€therefore resigning from their right to make a decision (Vecernik, Mateju 1999: 71, 72). In contrast, as indicated by the authors of a book on small privatization in the Czech Republic, Hungary, and Poland, the privatization of retail trade and consumer services was efficient and did not arouse criticism, being overall successful (Earle, Frydman, Rapaczyński, Turkovitz 1993). 16

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word “entrepreneur “supplemented by the Russian ending “chik” ) out of apparatchiks (Tarkowski 1994), or bluntly, as grand-scale plunder of the enormous pool of state-property, i.e., “stealing the state.” Semi-legalized anarchy preceded the emergence of capitalism based on the already formed unclear and non-transparent relationship between the economic and political system, that of political capitalism (Staniszkis 1994, 2005: 35) which became (to varying degrees) corrupt or even, as in the Russian case, criminalized (Lynch 2005: 21; Satter 2003: 54; Frisby 1998: 35). What is most important, these initial stages were crucial for the formation of access rights, the rights of acquisition of private property out of the national, and for the initial formation and characteristics of a class of property owners who were rather “pirates” than “Buddenbrooks,” i.e., opportunists grabbing their chances, enriching themselves rapidly, illegally or “in the shadows” of the law, instead of entrepreneurs legally building up their fortunes (Skąpska 2002b: 227–234). The further legalization of privatization and of access to state property acquisition overlapped with the making of new constitutions, and later on, new statutes. Thus, both in the late 1990s, as well as at the beginning of the new century due to the still considerable state resources which could be transferred to the private sector, some degree of anarchy, and a strong dependence on informal networks and connections will continue to characterize the economic transformation in ECE (Wedel 2001; Wedel 2002). The crucial point of departure today in the process of the state property erosion was marked by contracts or deals among representatives of the communist party still in power and members of the democratic opposition; these were the round table agreements of 1989–1990. Initiating a political transformation, RT agreements were important also for economic reform, i.e., first and foremost for the full-scale privatization of the state enterprises. Moreover, immediately after these agreements were concluded, the old constitutions were considerably amended or new ones were proclaimed in which the full protection of property rights was guaranteed. Additionally, the legal frameworks for mass privatization had been laid out, further defining access rights. At this stage of the transformation it is feasible to apply the BuchananTullock model of rational bargaining to analyze the contracts struck by the negotiating parties sitting at the round tables, and their outcomes (Buchanan, Tullock 1962). According to the rational bargaining model, the negotiating parties evaluate transaction costs and the utility of the concluded bargain. The authors of this model stress the importance for



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so-called “third party” interests, i.e., those non-participants in the bargaining, though affected by its results. In this respect, there is a great difference between economic and political bargaining. In the first case, the principles of free market operations constitute an intervening variable, which, even if only in the long run, influences the vested interests of the engaged parties. For instance, the long run perspective may force parties to restrict their too close cooperation at the price of the third party if, in the long run, the costs of such cooperation run too high, and the gains are too small. Therefore, calculations of costs in the long€ run lead the parties to choose the best solution. In the case of political bargaining, it has been argued that the result yields not the best solution, but rather a compromise between conflicting interests. Also the calculation of costs in the long run was very problematic here since they were entirely unknown and unpredictable. Yet another significant conclusion for an analysis of the postcommunist transformation, and a lesson one can learn from the BuchananTullock theory, concerns the results of such political transactions for a third party. In our case, this pertains to the general society which had such a limited impact on the bargaining process being transacted at the round tables. As Buchanan and Tullock argue, there exists an even more profound difference between economic transactions and political ones in which engaged parties represent power that may affect a third party adversely, that is, it may spill the external costs over onto entities outside the contractual relationship. In that case, as authors of this theory observe, the contracts became so-called “trades” or “deals,” and parties participating in the negotiations were subject to moral appraisal, because of the transaction costs incurred by those whose impact on the transactions was – at best – highly limited (Buchanan and Tullock 1962: 281). Therefore, the economic theory of rational bargaining turns our attention not only to the rationality of collective decision-making, but to the potential vulnerability of the bargaining process, especially with regards to the third party. It indicates possible sources of the de-legitimization of political elites, especially the former dissidents whose earned social trust was of a moral nature and who claimed to represent ethical values. There is another factor not usually taken into consideration. This was the ongoing privatization of state assets discussed above – especially their acquisition by those who gained access rights early. In fact, their interests were very clear and well defined by the time of the actual political bargaining at the RTs. This led to many negative phenomena

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characteristic of postcommunist economic transformation, to the nepotism and corruption noted above, and to great individual enrichment at the costs of “blown” companies. In turn, these pathologies contributed to the growing unemployment, and the de-legitimization of privatization in popular opinion. It also added to the already described “New Hobbesian Dilemma”: the struggle of powerful interest groups, labor unions, lobbies, and political parties for control over privatization on the one hand, and protection of social rights and privileges on the other, to the disadvantage of productive economic segments, mostly small and middle-sized enterprises. Summarizing, the strategic model of rational bargaining emphasizes the costs of concluded compromises and their consequences. It also suggests the possible moral evaluations of the bargaining parties and the results of the bargaining process by those who did not participate in the negotiations, but nevertheless paid the price of the transformation. From the latter perspective, it makes a great difference who already profits from the privatization, and which type of capitalism emerges. Needless to say, such assessments are of utmost importance for the legitimization or de-legitimization of the economic reform, independent of its later legalization in new constitutions and laws. One may conclude that the development of privatization after the collapse of the centrally planned economy results from several factors, notwithstanding the similar constitutional arrangements of the Stalinist constitutions still in power; there are pressures from above to privatize inefficient state economy but also from below, to participate in the acquisition of nationalized property. In the absence of new territories to be conquered, state-owned property privatization made it possible to get rich quickly and cheaply. The first difference in the early stages of capitalism consisted of the fact that here, at this early stage of economic transformation, a rather small risk was involved since the companies were (in most cases) undervalued. Secondly, the state economy was considered to be a national one that belongs to the whole nation, therefore its privatization from the very beginning became the focus of a strong moral judgement. The constitution versus mundane economic processes after the€collapse of communism in east central europe Democratic capitalism, which consists of a fairly broad distribution of access rights, was envisioned as an antidote to the acquired and learned



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helplessness, the free rider syndrome, and the struggle between strong collective interests typical of the old regime. The efforts aimed at the establishment of “democratic capitalism” differed in particular countries, reflecting their legal, civic, political and economic cultures, as well as the constellations of interests. Further analysis of the economic transformation in East Central Europe reveals the various patterns of privatization reflected in statutes proclaimed by the already democratic parliaments. Some of them appear dominant in a particular country – reflecting the various political traditions, values, and expectations as well as the strong collective interests – and determine the general features of that country’s mode of building capitalism, notwithstanding similarities and the fact that all forms of privatization were present in each country. In ECE, in the Czech Republic, Poland, Hungary and Slovakia, the most general and universal institutionalization of democratic capitalism took the form of the overall successful small privatization, and the selling off of small companies (mostly retail trade and consumer service sectors), at public auctions. As has been stressed, public auctions enabled outsiders to be brought into the privatization process, keeping it as open as possible. However, in Hungary, more closed procedures were used, and some preferences or privileges were created for insiders (Earl, Frydman, Rapaczyński, Turkowitz 1994: 300, 301). Efforts to make capitalism more democratic also resulted in privatization of the large national companies, the biggest economic assets of each country. Here the patterns for acquisition of access rights differed considerably. In Poland, the most popular mass privatization patterns usually took the form (aside from public offers) of insider privatization by employees of the privatized company, together with considerable bonuses (Biernat 1994: 35ff). According to the first Polish privatization law of 1991, but, especially, the subsequent agreement known as the “Pact on privatization of the state-owned companies” (struck in 1993 by the representatives of employees, employers and the state, and elaborated later in the form of binding laws), the employees of privatized company won a right to obtain free of charge up to 15 percent of the whole stock in the form of shares. Another popular form of privatization in Poland was called privatization through liquidation, which also entailed insider privatization and the transfer of ownership to employees of the company who could form an employee-owned company and sell off some stock to a strategic investor. These great privileges granted to the employees in Poland in the distribution of access rights are easily explained if the recent history of that country is considered, i.e., the

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importance of the Solidarność labor union for the whole process of system transformation. Indeed, as its documents from that time period indicate, its members’ views were very close to Locke’s labor theory of ownership rights. Generally, the distribution of access rights in Poland on the basis of equal citizenship was not only limited to 500 companies, but it was entirely compromised and eventually failed. This is an interesting phenomenon considering the fact that the model of voucher privatization of state-owned joint-stock companies (which is, in fact, a free transfer of state property to the population) was proposed by two Polish economists in the late 1980s (Lewandowski and Szomburg 1989: 264 ff). The question of who should participate in the privatization of the big state companies – insiders or outsiders – as well as that of whether insiders should be granted some privileges was solved in favor of a pure, voucher privatization in the Czech Republic. There the equal citizenship based privatization pattern, the famous kouponovka, became the most popular, and even symbolic. Characteristically, too, it was justified by this country’s great democratic traditions, those of equal citizenship as well as of grand scale corporatism. Considering these traditions, voucher privatization of the joint-stock companies seemed to be the most suitable institutional arrangement for dispersal of ownership among Czech (and, at the beginning also Slovak) citizens. Notwithstanding some problems with the evaluation of vouchers and of enterprises (see Engerer 2001: 181, 182), the broad dispersion of access rights appeared to be essential for the creation of a positive constitutional consensus in the Czech Republic. In Hungary, where privatization started well before the first democratic elections in 1989 and where round table bargaining was a matter of political bargaining between the elites, the emerging institutional order reflected the already established networks and connections between private, public and cooperative based companies. After studying the privatization of the 220 biggest Hungarian businesses, the American sociologist David Stark learned that the ownership changes have not clarified property rights. According to Stark, the dividing lines between the public and the private sector on the one€hand, and the individual enterprises as units of organization on the other, are still blurred and are getting ever more complex. This is a result of the usual strategy of the actors involved, aimed at reducing their risk by creating horizontal relations between the big joint-stock companies, and vertical relations between a joint-stock company and its satellites.



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In such a way, horizontal and vertical networks between companies are created. Moreover, the actors involved attempt to diversify their portfolios and create “recombinant property” (Bruszt, Stark 1996). The concept of recombinant property reflects an inter-enterprise form of ownership, a form of organizational hedging or portfolio management, a highly innovative and imaginative way in which actors respond to uncertainty by diversifying their assets, redefining and recombining resources. Parallel to this decentralization of assets as a risk reducing strategy was the centralized management of liabilities, which were initially burdening the state and its treasury. The notion of recombinant property is also applied in Poland in analyzing the emerging order of complex ownership relationships, together with the notion of “cascade companies,” i.e., the formation of “daughter companies” dependent on the still state-owned “mother.” The mother’s role consists of giving an endowment to the daughter in the form of assets, and taking on the daughter’s liabilities herself (Morawski 2000: 122). There were also other efforts aimed at the democratization of capitalism. In Hungary, for instance, they consisted of interest subsidized loans earmarked for the buying of shares; in Hungary and other countries too, such institutionalization also took the form of creating employee stock ownership programs (ESOP), and broad distribution of access rights through public offerings with some bonuses. Thus, if one looks at the other side of the reality of postcommunist society, one sees a quite different picture of the ongoing privatization. One of the crucial but unforeseen or overlooked consequences of€ postcommunist privatization is the so-called political capitalism, and the growth of political-economic clientelism, i.e., the emerging peculiar constellations of interests, of networks and connections composed of high ranking politicians and businessmen used for further siphoning out the still existing considerable state-resources (Staniszkis 2001). As has been observed with respect to Poland, such constellations and networks result in the oligarchization of the national economy in the shape of “symbiotic” links between the state and the economy€(Morawski 2000: 78). They threaten the foundations of a liberal market, namely its transparency and its ruling principle of free competition. Here the illicit links and behavioral patterns which are highly persistent will be stressed, along with the growing involvement of politicians and governmental officials in the process of economic change.

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This engagement was possible at all levels and used the new opportunities€ provided by laws proclaimed by political ruling parties or coalitions (Skąpska 2009). Another opportunity was created by the so-called commercialization of state-owned companies, introduced when the criticism of privatization became a subject of public debates. Then the labor union officials, as well as other clever individuals, saw their opportunity. In€ the commercialized enterprises the directors were replaced by collective bodies, to which supervising boards were added. For the ruling parties the commercialization instead of privatization brought a double advantage. Firstly, these collective bodies created secure positions for the party apparatuses; and secondly, having power in the biggest companies in the country, political parties could comfortably and€ securely siphon money from these companies in ever growing amounts. The new opportunities presented by the governmental activity consisted of limiting economic freedoms. This process was initiated already by the second democratic government in Poland whose prime minister was a founding member of the Liberal Democratic Congress which declared its commitment to a free economy, but the finishing blow was struck by the Solidarność-supported government at the beginning of this century. At that time a common habit was to visit ministries with a briefcase full of money. Limiting of economic freedoms opened the€way for governmental officials at the national and local level to decide on permissions and licenses to open a new company, alongside the decisions on privatization of companies, or the reprivatization of nationaÂ� lized property. According to research on reprivatization conducted in Poland in 1999–2002, one of the most important factors key in its success in individual cases was good relationships with representatives of local government, or, in the case of the reprivatization of profitable companies, ministers in the national government (Skąpska 2005). These circumstances bore – and still bear – a great potential to corrupt. Under them becoming a millionaire with no initial capital was Â�possible, as was buying a property that, according to the relevant laws, should€be returned to its original owner. As Polish entrepreneurs complain, under the former (communist) regime one had to bribe only one official, now there are plenty of them at the local and national level (Skąpska 2002b: 115). The political capitalism was deepening its roots notwithstanding efforts to make it more democratic.



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Conclusions: written constitutions and emerging realities Privatization as a part of capitalism building, next to decommunization and lustration, comprises another essential step toward the differenÂ� tiation of the emerging postcommunist constitutionalism from the former, Stalinist one. The ensuing processes reflected the further demarcation, but also the impact on the new order of the already established institutions and rights. Hence, some twenty years after the collapse of the centrally planned economy, the parallel orders of property rights acquisition and the emerging privatization patterns contribute to the emerging constitutionalism, give it a normative texture, and influence the interpretation of constitutional principles. As I have tried to demonstrate in this chapter, the molding of such a normative texture started before the democratization processes began as a result of the former government attempts to make the economy more effective, and also as a result of the spontaneous process of state property privatization. Indeed, these were attempts at participation in the lucrative “dividing of the cake” that consisted of state property. These processes make it possible to divide rights which are, as Polish employees would say, “justly acquired” and therefore legitimate, or unjustly acquired, therefore illegitimate. Whether something is seen as justly or unjustly acquired depends on the local traditions, reflected mostly in the mass privatization patterns. The consensus includes also small privatization, if it was conducted according to the binding laws. On the other hand, the cloudy and unclear patterns of state property acquisition in the form of access rights granted before the democratization, as well as the current similarly muddy practices of political capitalism challenge the positive constitutional consensus. Moreover, the perception of legitimate and illegitimate rights influences the legitimization of the whole transformation. Thus one can plausibly assume that the norms and rules of the game which were formed before the crucial political changes influence the whole process of nationalized property acquisition, before 1989, after 1989, and today. These rules overlap with the processes of legalization and constitutionalization of economic order, and with pathological developments that lead to political or crony capitalism, to oligarchization of the economic order, contrasting deeply with the initial expectations of some form of “democratic capitalism” or of a “social market economy.” Because the concept of the€ “social market economy” is either enshrined in the constitutions (see the Polish constitution of 1997), or is implied by constitutional

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guarantees of social rights, the semantics of the constitutions become incompatible with the structure and order of economic relations. This is particularly true with respect to those countries which initiated their reforms early, thus, to Hungary and Poland. Also in this respect the analysis of postcommunist constitutionalism confirms the observation that the lack of a clear dividing line inhibits the self-reflection and selforganization of the new constitutional community. There is another important conclusion one can draw even after such a brief outline of privatization and it concerns the constructivist theories of constitutionalism. As demonstrated, in ECE and elsewhere, changes do not occur in a vacuum. They take place in the actual Â�circumstances of real societies. Actors with their aims and interests populate this space. Also, the economic transformation is not constructed “from scratch.” The imposed frameworks do not predetermine the emerging forms of capitalism which are themselves interpreted in light of the emerging forms of property, and the actual practices of the actors involved. The final conclusion regards the rule of law – the fundamental constitutional provision. As the Polish and other East Central European experiences indicate, it is not so simple to apply the rule of law principle to the reality created by the postcommunist transformation. This is especially true if that principle is understood in its classic sense – as subordination to the binding law. Under the circumstances of privatization of the national economy, this principle should be reinterpreted according to the context, and this represents the various opportunities opened by the economic transformation. In such a context the efforts aimed at legalization of economic transformation, which means here the legalization of access to privatization of state property, were and are confronted by processes and activities characteristic rather of a “jungle” of postcommunist reforms, as Polish entrepreneurs call it (Skąpska 2002: 123). Part of such a jungle was law-making, dominated by the ruling political parties. Hence, after the formation of the initial access rights, and the proclamation of private property protection in all postcommunist constitutions, the struggle for control of the transformation continued. In this respect, the notion of political capitalism describes well the close collaboration between politicians (old and new), state functionaries, and private actors aimed at sucking out the still existing state resources. Plagued by corruption and fraud, the existence of such illicit collaboration and emerging networks contributes greatly to the “Hobbesian dilemma” instead of the rule of law. It pro-



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vokes the reaction of those who have not been involved in the form of growing demands for privileges by strong and organized groups, as well as populist demands for a revision of the privatization and renationalization of privatized companies.

Summing Up: Thirteen Theses on Postcommunist Constitutionalism In his ten parables of postcommunism, “Parables of Hope and Disappointment,” Martin Krygier listed ten profound, moral problems faced by postcommunist societies which are challenged by the difficult task of building a new constitutional order. At the end of the book at hand, it seems appropriate to quote parable number three, labeled by its author “The wisdom of Chou En-lai.” It goes as follows: “Those who imagined that, after the collapse of communism, it could be easy and quick to establish democracy, rule of law, prosperity, and equality were doomed to disappointment. But 12 [now 20] years is a short time in the development of the institutions of any social order, unless they collapse quickly. Recall Chou En-lai’s response, when asked to assess the results of the French Revolution: it is too soon to tell” (Krygier 2002: 63).

It is too soon to tell maybe whether postcommunist constitutionalism already presents a theory of postcommunist society about itself. As a matter of fact, new developments – especially the membership of these countries in established Western institutions – significantly challenge the existing constitutional arrangements and contribute to the ongoing experimentation. Yet some conclusions can be drawn. In ECE, constitutionalism constitutes an effort by postcommunist societies to consolidate around some values, principles, and rules that could help them to integrate, consolidate, and form a new political architecture. This requires a new institutional design as well as conceptual framework that would enable them to form a new social contract after the collapse of the former regime. As an effort to form a theory of society within society, this process is the result of reflections on the past, current ambitions and expectations, and the hopes and fears of societies undergoing transformation. Hence, postcommunist constitutionalism aims at providing the guiding rules that solve the most demanding issues of postcommunist consolidation and a language that facilitates communication about issues of public concern. Such a theory assists in the further development of the new constitutionalism, combating contingencies and choosing among the options made available by the increasingly complex and globalizing world.

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After the collapse of the earlier regimes around 1989, ever newer options and newer questions arise – many of them caused by international integration and European unification, others by the inherited “inventory” of Stalinist constitutionalism with which it is difficult to contend. Postcommunist constitutionalism continues to display features of a long process – in other words, what one discerns today is rather the process of constitutionalization than a final product. The fundamental question is whether the formation of postcommunist constitutionalism is based on clear conceptual foundations compatible with the specific requirements of a postcommunist society. Obviously, the imported solutions – representing the two orthodoxies of the modern world, i.e., “rule of law” and “neoliberal capitalism” interpreted literally and narrowly – were hardly compatible with the complexities and ambivalences of these societies or with the legacies with which they had to cope. Above all, these include the heritage of mass scale human rights abuse and of the vast gray zone of unclear complicity – the many shades of participation in, contribution to, or collaboration with the former regime. Moreover, neo-liberal orthodoxy does not work well with the thorough transformation of a nationalized economy, broad-range privatization of national property, and the building of capitalism in societies deprived entirely of private property and private capital. Therefore, according to the first thesis on postcommunist constitutionalism, its development, its binding force, and its consolidating potential depend on original concepts and ideas and on innovative interpretations of classic concepts and principles which are compatible with the precarious circumstances of postcommunist change. The following theses generally summarize the fact that, in this respect – that of the development of inventive and simultaneously clear-cut concepts and guidelines for postcommunist consolidation – the process of constitutionalism development proves especially difficult and demanding. It encompasses great efforts to overcome the burden of the past and to adapt to standards of liberal democracy. Often however, it is still a “valley of tears” and not the “golden hours”1 which characterizes the situation of this region. The past continues in

1 ╇I am referring here to the famous verse by Wordsworth – “France standing on the top of golden hours/ And human nature seeming born again” – cited by Ralph Dahrendorf in his no less famous essay composed one year after the transformations began (Dahrendorf 1990: 9).

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many ways to haunt the present, and the commitment to liberal and democratic values is put to the test. Defined as a theory of society within society, postcommunist constitutionalism and its development depend on the initial definition of a leitdifference – an elementary distinction which, firstly, enables the societies in question to ponder themselves and, secondly, to choose options for further development. Above all, the leitdifference mirrors what the postcommunist polities are not – helping them to define who they are, and to develop a distinctive and self-reflecting theory regarding themselves. That, in turn, could provide new democracies with discursive and institutional tools to combat the contingencies of the overwhelming, demanding and novel transformation – a transformation on the until now unknown scale – and of their own past. They need to choose a model of democracy, a type of market economy (type of capitalism), and an interpretation of human rights – not to mention an interpretation of the law-governed state principle itself. In brief, all these factors would help to constitutionalize further development towards Western-style democracy and capitalism, rooted in and reflecting the experiences of the societies in question. A debate on these issues usually refers to the concept of political and social change, and to the concept of transition as a gradual change, or transformation as a change of revolutionary nature. Both, transition and transformation will reverberate in conceptual change. This will take the form of a conceptual revolution or slower conceptual transformation, i.e., rational piecemeal innovations which change the boundary conditions for rational action. This issue was debated in Chapter One with reference to the fundamental conceptualizations of a constitution and constitutionalism, and the doctrines or theories that function as sources of concepts and of justifications of institutional designs. The question was raised as to the concepts which decide about the specificity of the change, which justify it, which are important for constituting political beliefs and action, and which bear genuinely transformative potential. Revolutionary transformation seems to present a better opportunity for the formation of a leitdifference, because in the history of the involved societies it presented a rupture, a clear breaking away from the preexisting order. At least such are the lessons to be learned from the history of modern European revolutions – first and foremost, the French Revolution of 1789 and then the Bolshevik Revolution of 1917, both of which are defined as of the Jacobin-type. As we remember, in

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the first case not only the political, economic, and legal order, but even the calendar was changed in revolutionary fashion, rapidly and thoroughly. Both of those modern revolutions functioned as conceptual and mental shifts since they provided political and social change in the shape of entirely novel concepts of civic rights (in the case of the French Revolution), as well as change in the political, economic, and legal order (in both cases). Thus they defined the path of political action as well as the expectations regarding what the new societies were going to be. These revolutions subsequently resulted in a rash and thorough transformation of public law, too – even if it is claimed that the Jacobintype revolutions, while aiming for a complete break with the past, actually developed and consummated trends in government and law that had been there before. Parallel to the clear political and social rupture was the development of clear concepts on the political, economic, and legal order as well as of citizenship. These concepts were shaped in opposition to old ones, in the form of sharp distinctions. One example – although entirely different from the constitutions inspired by the doctrines and ideas brought about by the French Revolution (i.e., liberal doctrines and ideas) – is presented by Stalinist constitutionalism, inspired by Marxist and Leninist definitions of law and state, political order, and economy, and by Marxist ideas on social development. It indeed brought about a fundamental conceptual change based on a comprehensive theory of society. The example of Stalinist constitutionalism shows how a social revolution and conceptual one can go hand-in-hand. Bearing in mind the legality of the changes discussed in the Prologue to this book, it is quite difficult to estimate whether the indisputably deep and thorough changes in East Central Europe were of a revolutionary transformation or a gradual transition. Some authors argue that”… constitutional and legal developments in postcommunist Europe can hardly be described as transitions [understood as the process of gradual change]. The developments as manifestly discontinuous include rather revolutionary features of abrupt changes of political system followed by complex social and economic transformations” (Roberts, Priban 2003: 1). However, it is also proposed that these events be labeled “refolutions,” “self-limiting revolutions” or “negotiated discontinuity” (Ash 1990; Staniszkis 1990; Roberts, Priban 2003: 1). These terms could serve as conceptual tools for an analysis of the events accompanying the formation of postcommunist constitutionalism.

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The new democracies face some difficulties in defining this fundamental difference, the leitdifference that would enable them to develop a new, straightforward theory about themselves, and that would also help them combat the legacies of the past while reacting to the challenges and complexities of the contemporary world, and of their own transformation. Obviously, the societies of East Central Europe did have a strong idea about what they would not like to have anymore: a Stalinist constitution. However, they were challenged by questions of what to do next. Above all, how should a new social contract be formed? Furthermore, how should these societies protect economic freedoms and liberties, shape independent and responsible economic agents out of socialistic workers and civil servants, or create capitalism without capital or any other financial resources at the disposal of the future capitalists? The peoples of this region have to deal, too, with the legacies of mass-scale human rights violations, including the nationalization of nearly all property. The societies were entangled in the past, and dealing with such legacies are of the utmost difficulty, especially because of the fact that civic rights violations had been committed by participants of the round tables – the very partners and no longer opponents of the civil society, who negotiated the agreements on which the future constitutional orders were be based. For these reasons, during the whole period after 1989 in Poland, Hungary, Slovakia, and to a significantly lesser degree in the Czech Republic, persons and organizations from the past, the former communist cadre and postcommunist parties proved to be important political agents. Hence, the characteristic feature of postcommunist constitutionalism is the fact that it is haunted by the past, that it fears the past will return. The postcommunist constitutions are, to a considerable degree, constitutions of fears and not only of hopes. On the other hand, there are great differences between the postcommunist societies in this respect, and each approach to the past embodies different theories about the societies involved, as well as different conceptualizations of the rule of law or the law-governed state principle. In the case of the Czech Republic, the period of “transitional justice” represented a type of reaction toward the criminal past and the guilt of the communist nomenklatura, as well as perhaps some shame representing a part of societal self-reflection. That was not so obvious in Hungary and Poland. Especially in the first case, the law-governed state provision interpreted in a narrow, literal sense was used to hide the past and to prevent a critical review of recent history. In both these cases the

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formal interpretation of the law-governed state provision proved to be instrumental in silencing the past, whereas in the Czech Republic, the political will to reckon with the past human rights violations was accompanied by some innovative approaches to the law. This process was preceded by debates on the subject, and the sources of the Czech approach to the lustration, decommunization and also to restitution of property are to be found in the novel, philosophically grounded approaches to law and legality debated by the most prominent Czech dissidents. In contrast to the earlier European revolutions, the recent changes in ECE were relatively peaceful. The revolutions in this region did not resemble the old Jacobin ones in any respect, nor did they place in doubt the entirety of existing law. Quite the opposite, legality (i.e., adherence to existing law) characterized the negotiations for the conditions and procedures of the change. Subsequent changes were in some cases relatively rapid, as the case of the economic and political transformations illustrate above all; in other cases they were rather gradual, and still remain unfinished, as the case of Polish restitution exemplifies, or the process proves to be long, difficult and it evokes more and more doubts, as illustrate the cases of lustration and decommunization in Hungary and Poland. After the round tables, new constitutions were proclaimed, or, as in the Polish case, the old constitution was significantly amended, or, as in the Hungarian one, an invisible constitution, composed of the verdicts of constitutional courts, was gradually developed, in the shadow of a constitution proclaimed still before the first democratic elections. However, even if new constitutions were proclaimed after the democratic elections at the beginning of the 1990s, legal changes were more gradual. Moreover, as has often been observed, under the surface of the constitutional changes (more rapid or more gradual), there were, and still are much slower processes of institutional and especially cultural changes taking place, characterized by continuity and persistence. Therefore, because of more or less rapid constitutional changes vis-àvis the much slower changes of the law, and the subsequent accommodation of the law to the new constitutions, the still existing discrepancy between the new constitutions and the old law comprises the next thesis on postcommunist constitutionalism. This thesis is supplemented by a related one regarding the discrepancy between the new constitutions and the old legal and political cultures.

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The further incongruity between constitutions and reality results not only, as I have attempted to demonstrate in this volume, from the legacy of Stalinist constitutionalism. This gap has much more remote, yet still important roots in the Eastern European divisions between the elites – enlightened and inspired by the modern concepts of a constitution, the law, and human rights – and the “common folk.” The latter is treated by the former as an object of enlightenment and not as a political subject composed of citizens already bearing full and equal rights. Perhaps with the exception of Czech society, this socio-historical feature of Eastern European societies contributes to the difficulties in the formation of a new social contract, to their disappointment in democracy, and their political passivity or even withdrawal from the political process. For this constituency a constitution still represents a purely symbolic consensus, incomprehensible and ignored. Instead of a constitutional patriotism, not to mention a civil religion, they stick to old habits, networks, and connections that have proved practically binding in the past. These brief remarks point in the direction of further crucial features of postcommunist constitutionalism. Summed up in the two first theses, they are its contextuality and reflexivity, and its processual nature. Of course, any constitution is contextual. It always reflects the most important cultural features of the society for which it comprises the fundamental architecture, the fundamental principles and rights. Hence, as has been noted on numerous occasions in this volume (and especially in Chapter One), constitutions – unless they are treated as documents of no practical relevance – do not exist in a social and cultural vacuum, and they cannot be implemented from above, as readymade solutions to the most burning social and political problems. This is even more important in East Central Europe due to imported Stalinist constitutionalism that functioned here for nearly half a century with devastating consequences for the societies concerned, their political and legal cultures, and their economies. In this region, democracy was fought for by civil societies – regardless of how large or small – precisely against Stalinist constitutionalism. Even the often miniscule communities of engaged citizens were popularly supported, something made self-evident when protesters flooded onto the streets. However, contextuality and reflexivity of the new constitutions proclaimed after the collapse of communism in ECE resulted in the tensions and contradictions within constitutional semantics. As has been

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emphasized in this book, the semantics of postcommunist constitutionalism reflect several contrasting ideas and expectations of the societies themselves. Thus, as emphasized already, first, in search for their identities these societies retreat to some older ideas, concerning political identities as well as the concept of the constitution and its interpretation under the auspices of the rule of law. There are also the experiences of nations deprived of full political sovereignty for the greater part of their modern history which, in turn, have a great influence on their concepts of collective, political identity. Should it be formed around a concept of “nation” or “Europe”? Should it center around a slogan of “back to the past” which means back to the past when these nations were politically independent, or the slogan of “returning to Europe” illustrating the popular convictions that East Central Europe is a part of Europe (meaning “Western”)? After all, only due to the most unfortunate historical circumstances and political arrangements did this region find itself behind the “Iron Curtain.” There are other tensions between the narrow, literal interpretation of the existing law – that which was overwhelmingly inherited from the former system, and the broader and more flexible interpretation subordinated to the concepts of human rights, human dignity, fairness, and justice, and inspired by novel ideas on polity, politics, citizenship, and the public sphere debated by the Eastern European dissidents – members of civil society proper. Their experiences became expressed in the concepts of living within the truth, anti-politics, and a parallel polis; all of them referred to a public sphere conceptualized in the classic, Aristotelian sense. There, the public sphere became importantly supplemented by such a conceptualization of anti-politics that referred to authenticity and independence as characteristic of human existence within politically organized society. As I have underscored herein, these novel concepts and ideas provided the material for a cognitive frame and lens through which the dawning social and political reality could be perceived. They could also be used to interpret fundamental constitutional concepts and provisions, lending them a meaning compatible with the experiences and expectations of people involved, instead of the purely technical and literal interpretations of a constitution. One can observe also another tension between the narrow conceptualization of the constitution as an instrument of governance, and a broad one which refers to the general and open-ended provisions and links the constitution with a dignified existence for the citizen within the polity composed of human beings endowed with human rights.

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Postcommunist constitutionalism is characterized by yet another important tension. Next to the tension between “nationalism” and “Europeism,” and the tension between the literal interpretation of constitutional provisions in the spirit of legal positivism and the broad interpretation linking the semantics of constitutional provisions with the broad and open-ended provisions with deep philosophical and moral underpinnings, there is the tension between the a-historical, timeless interpretation of the constitution, and the interpretation which appeals to the historical experiences of civil society and citizenship in ECE. The brief analysis of the liabilities with which Eastern European societies entered the process of transformation indicated the negative potentials, the discrepancies between these concepts of the rule of law, civil society, and authenticity, and the actual experiences with the application of law in communist and postcommunist societies. This incongruity was also a consequence of the fact that the very debate on the law, legality, the rule of law, and human rights protection reflects an Eastern European syndrome. It mirrors the structural divisions within these societies: the divisions between the “haves” of some substantial and intellectual capital, and the “have nots” excluded from the public debate for centuries. All of the above renders an assessment of the moral nature of the transformation and its effects on the third party – those “have nots” who were not active participants of the initial round table agreements – even sharper. Evaluations of the RT outcomes, as well as of their participants, could reflect the older as well as the newer divisions and exclusions from the public debate. The postcommunist constitutions consist of provisions common to all liberal constitutions. In all of them the law-governed state is proclaimed as their opening norm; they all proclaim a separation of powers, and protection (often seen as excessive) of human rights. Yet they also refer to unique experiences with Stalinist totalitarianism, loss of national sovereignty as well as of national and cultural identity, and the massive violations of basic human and civic rights. They are constitutions of remembrance since they often refer to either recent or rather remote political and constitutional traditions representing some of the cultural capital and now legitimation for the new order in the postcommunist societies of ECE. However, still more profound challenges to constitutionalism after the collapse of communism are directly connected with the past of these societies. The first regards the rule of law concept – the earlier

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mentioned, seemingly unquestionable legal orthodoxy – and the second regards the liberal orthodoxy of economic transformation. The first orthodoxy is challenged by the gross human rights violations of the past. The postcommunist constitutionalism has to somehow deal with such history and that demands some new methods and solutions€ that are perhaps innovative but not exactly conforming to the classic conceptualization of the rule of law. Postcommunist constitutionalism is plagued by the communist past, and the tasks it faces go beyond the conventional rule of law interpretations. On the other hand, the past contributes to the formation of new rights – namely to truth and to remembrance – as important features of the new constitutionalism, and important contributions by post-totalitarian or post-dictatorial constitutions to the very meaning of constitutionalism. The next important contribution is the result of the necessary economic transformation. The privatization of national or state property demonstrates that not only constitutional protection of pre-existing property rights, but the establishment of rights to access to this process contributes importantly to positive constitutional consensus; it also decides on the characteristics of the particular models of capitalism emerging in East Central Europe. The next feature of postcommunist constitutionalism is its processuality – in some respects even its fluidity, its still developing character. The concept of processuality is used here in two meanings. Firstly, the accent is placed upon the still fluctuating interpretation of constitutional provisions under the circumstances created by the novel and unique situation of postcommunist societies, through challenges to the fundamental principles of their constitutions. That is the reason for the quite unexpected role and position of constitutional courts after communism – as watchmen over the new constitutions, but also as agents responsible for introducing novel meanings to classic concepts, often in response to burning political issues. With respect to these courts, processuality refers here to procedural judgments as the ultimate justification not only of legal, but also of political decisions. Constitutional adjudication after the collapse of communism is not the subject of this book; that topic has already been brilliantly analyzed€quite recently (Sadurski 2006). However, in the sociological analysis at hand, it is important not only to stress the place and role of constitutional courts in the political architecture of the new democracies. It is also important to expose the developing “invisible constitutions” composed of verdicts and decisions by constitutional courts

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and tribunals. This element comprises a core component of postcommunist constitutionalism. The concept of “invisible constitution” was once used to describe the distinctiveness of Hungarian constitutionalism, yet the idea proves to be of broader relevance with reference to crucial verdicts by constitutional courts across this region. Here one should emphasize once more the verdicts on lustration and decommunization, or on property restitution and on citizenship with their decisive impact on the interpretation of the provisions of a law-governed state and non-retroactivity. The actions of constitutional courts and tribunals have challenged the traditional concept of a legal system as composed of statutes. The decisions made have also contested political institutional design, meaning that the courts of this region have further proven themselves as significant political agents. They became willy-nilly involved in the political struggle since legal questions have often referred to the hottest political issues – be they lustration and decommunization, restitution of property rights, or privatization of the national economy. Judicial activism in the rising democracies is critically debated and the outstanding role of constitutional courts is questioned because these two factors alter the traditional concept of checks and balances in the political systems of the republican parliamentarianism established in this region after 1989 (Roberts and Priban 2003: 3). FurtherÂ� more, the processuality of postcommunist constitutionalism means that the courts have become key negotiators in the transformation of the legal cultures dominant in this region through the establishment of some features of the precedential legal decision-making prevalent in most civil law cultures. Hence, as it is claimed, the courts have emerged as a “third legislative chamber” (Sadurski 2003: 15; Sadurski 2006: 4). Because their verdicts are changing, accommodating shifting circumstances, the courts contribute to the processuality of postcommunist constitutionalism in the first meaning of this concept, i.e., to its fluidity. Obviously, constitutional court adjudication contributes to the communicative aspects of postcommunist constitutionalism: first and foremost to the understanding of the law-governed state principle, of civil rights, of human dignity, or of provisions of social justice. As such, these courts comprise crucial factors in the creation of constitutional communities, united by a common understanding of constitutional principles. Added to all of the above should be the observation that the constitutional courts and tribunals – alongside the institution of the

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civic ombudsperson in Poland (human rights spokesperson) – are among the institutions earning the highest popular trust and prestige (in contrast to the parliament or government whose prestige and trust levels are lowest). These courts are, therefore, crucial in the process of legitimizing the basic principles of the new order. As full members of the European Council since the early 1990s (Hungary 1990; Poland 1991; and the Czech Republic and Slovakia 1993), the analyzed countries have subordinated themselves to the European Convention on Human Rights and Fundamental Freedoms, and to the verdicts of the European Tribunal on Human Rights. The Convention as well as the Tribunal’s verdicts are not only binding, but maintain supremacy over national law and are directly applied. Yet a distinctive feature of postcommunist constitutionalism is not only its strong connection to supranational (here European) human rights protection but the fact that the European Tribunal on Human Rights functions in the consciousness of the citizens of postcommunist states not as a “last resort” to which one complains after all other means of national appellation have been exhausted, but as an institution which – in the eyes of the people – actually supplants the national judicial system. This is made evident by the great number of petitions sent to Strasburg, and, above all, by the fact that they are directed there before€all available internal procedures have been utilized. Therefore, as the Polish example demonstrates, nearly 70 percent of the complaints are€dismissed due to not having fulfilled this preliminary requirement. Nonetheless, the verdicts of the European Tribunal currently constitute€ yet another component of the invisible constitutions: similar to those of national constitutional courts and tribunals, these verdicts conÂ�tribute to an understanding of constitutional provisions and to the creation of constitutional communities. However, in this case, the constitutional communities are shaped by the inclusion of supranational human rights protection into a national constitutional order. Hence, the postcommunist constitutionalism, apart from its processuality and fluidity, is characterized by its multiple and complex institutional architecture. It is composed of written documents, of constitutions proclaimed by democratic parliaments, and of international covenants on human rights protection as a part of a national constitutional order; it also entails “invisible constitutions” consisting of verdicts and decisions by national – as well as supranational – courts and tribunals. Thus, although it was not the subject of this book, what requires specific and further investigation regarding postcommunist constitutionalism is, within this multiple institutional architecture, the role played

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by the supranational protection of human rights. One can venture a thesis that supranational protection of human rights comprises a crucial component of postcommunist constitutionalism, providing the East Central European societies with guidelines for interpreting constitutional provisions. Moreover, the supranational protection of human rights links two dimensions of postcommunist constitutionalism formation – “Europe” and “civil society” – because the adjudication of supranational courts (here the European Tribunal of Human Rights) depends upon the grassroots complaints of individual persons and civic organizations. This final point represents, too, a crucial thesis on postcommunist constitutionalism: its formation was initiated by the efforts of a civil society, but its development was impeded by the legacies of the past, by the inherited political cultures of the involved societies and their elites, by the incompatibility of classic concepts and new orthodoxies, as well as by the novel and unique circumstances of postcommunist change. Last but not least, at the present moment, the further development of postcommunist constitutionalism depends upon civil society actions, followed by reactions to these at national and international levels of human rights protection.

Appendix One:╇Election Particpation in Eastern Europe a)╇ General Index Land

Average

Slovakia The Czech Republic Latvia Slovenia Romania Hungary Bulgaria Estonia Lithuania Poland Average

81.87 78.02 76.21 72.64 69.03 68.64 68.07 63.11 58.09 45.99 68.19

b)╇Election Participation in Poland in Particular Years 1993 1997 2001 2005 2007

52.1% 47.9% 46.3% 40.6% 53.9%

Appendix Two:╇Satisfaction with Democracy in Eastern Europe Country Bulgaria Czech Republic Estonia Lithuania Latvia Poland Romania Slovakia Slovenia Hungary Average

Full Partial Limited Dissatisfaction Satisfaction satisfaction dissatisfaction 2.99 3.43

25.28 42.31

32.61 40.93

39.11 13.33

2.15 0.60 0.85 0.97 1.53 0.94 1.61 2.37 1.74

27.61 30.10 40.17 35.15 15.12 30.66 50.60 21.62 31.92

50.61 51.10 41.31 40.78 55.22 41.98 35.41 64.76 45.48

19.63 18.20 17.66 23.11 28.13 26.42 12.37 11.25 20.86

Appendix Three:╇Satisfaction with the Actually Realized Model of Democracy in Particular Countries Question: Do you think that such a form of democracy as we have in our country is: Country Bulgaria Czech Republic Estonia Lithuania Latvia Poland Romania Slovakia Slovenia Hungary Average

Best form of government

Better forms exist

No opinion

19.70 38.26 24.61 47.68 23.31 21.16 52.50 26.69 42.03 75.60 37.00

49.38 44.32 51.31 34.70 63.04 46.59 39.63 56.75 39.66 24.40 45.14

30.91 17.42 24.08 17.62 13.66 32.24 7.87 16.56 18.32 0.00* 17.86

* No such possibility recognized in questionnaire

Appendix Four:╇Comparison of Evaluations of Democracy and Market Economy in Action in Particular Countries* (* Measured on 10-point scale) Country Bulgaria Czech Republic Estonia Lithuania Latvia Poland Romania Slovakia Slovenia Hungary Average

Evaluation of democracy

Evaluation of market economy

3.53 4.40 4.36 4.07 4.18 3.77 3.57 3.83 4.41 4.42 4.06

3.32 4.37 4.62 3.96 4.12 4.13 3.17 3.72 4.08 4.07 3.95

Bibliography Bruce Ackerman Future of Liberal Revolution 1992, Cited after Polish edition Przyszłość rewolucji liberalnej Oficyna Wydawnicza: Warsaw 1996 Anne Applebaum Gulag. A History (Polish transl. Historia Gułagu Świat Książki, Warszawa 2005 Andrew Arato “Reflexive Law, Civil Society, and Negative Rights” Cardozo Law Review, Vol. 17, Number4–5, March 1996, pp. 785–790 Andrew Arato, Andras Sajo “Editor’s Introduction to: Law and Policy, Vol 13, Number 2, April 1991, pp. 101–106 Hannah Arendt The Origins of Totalitarianism New York: Harcourt Brace 1951 Said Amir Arjomand “Constitutions and the Struggle for Political Order: A Study in the Modernization of Political Traditions” European Journal of Sociology 33(4): 39–83 1992 Said Amir Arjomand “Law, Political Reconstruction and Constitutional Politics” International Sociology, 1/2003, pp. 7–32 Gregory S. Alexander, Grazyna Skapska (eds.) A Fourth Way? Privatization, Property, and the Emergence of New Market Economies Rutledge: New York, London 1994 Eva H. Balazs Hungary and the Habsburg Monarchy. An Experiment in Enlightened Absolutism Central European University Press: Budapest 1997 Leszek Balcerowicz 800 dni. Szok kontrolowany BGW Publishing: Warszawa 1992 Zenon Bankowski “Introduction” to: Z. Bankowski (ed.) Revolutions in Law and Legal Thought Aberdeen University Press: Aberdeen 1991, o. V–VIII Maria Barańska “Zasada państwa prawnego w dyskursie publicznym na temat lustracji” Studia Socjologiczne 2/2007, 83–116 Rudolf Battek “Spiritual Values, Independent Initiative s and Politics” in: Vaclav Havel et al., Edited by John Keane The Power of the Powerless. Citizens Against the State in Central Eastern Europe M. E. Sharpe, Inc.: Armonk, New York 1985, pp. 97–109 Zygmunt Bauman Modernity and Ambivalence Blackwell: 1991 Ulrich Beck “The Reinvention of Politics: Toward a Theory of Reflexive Modernization” in: Ulrich Beck, Anthony Giddens, Scott Lash Reflexive Modernization Polity Press, Cambridge Richard Bellamy, Vittorio Bufacchi, Dario Castliglione “Introduction: The Making of Democratic Europe” in: the same authors “(eds) Democracy and Constitutional Culture in the Union of Europe Lothian Foundation Press: London 1996 Vaclav Benda “Catholicism and Politics” in: V. Havel et al. The Power of the Powerless supra, pp. 110 –124 Harold J. Berman Law and Revolution. The Foundation of the Western Legal Tradition Harvard University Press, London: 1983 Stanisław Biernat “The Uneasy Breach with Socialized Ownership: Legal Aspects of Privatization of State-owned Enterprizes in Poland” in: Gregory S. Alexander, G. Skąpska, ibidem, pp. 19–32 Jes Bjarup “The Concept of Revolution” in: Z. Bankowski (ed) Revolutions in Law and Legal Thought Aberdeen University Press: Aberdeen 1991 22–30 Laszlo Boros, Agnes Gyulavari, Zoltan Fleck “Zur Veraenderung der Eigentumsordnung in Ungarn” in: Gerd Bender, Ulrich Falk (eds) Recht im Sozialismus: Analysen zur Normdurchsetzumg in Otseuropaeischen Nachkriegsgesellschaften (1944/45–1989), Vol. I, “Enteignung” Vittorio Klostermann; Frankfurt am Main 1999, 1–36 Laszlo Boros “Social and Political Context of the Transformation Process in the Hungarian System of Justice” in: Jiri Priban, Pauline Roberts and James Young

240

bibliography

Systems of Justice in Transition. Central European Experience since 1989, Ashgate, Aldershot England, Burlington, New York USA 2003, pp. 193–212 Pierre Bourdieu Language and Symbolic Power Polity Press: Cambridge, Mass. Harvard University Press 1999 Pierre Bourdieu Distinction: A Social Critique of the Judgment of Taste Harvard University Press: Cambridge, MA James Boyd White “Rhetoric and Law. The Arts of Cultural and Communal Life” in: Heracles’ Bow, Madison 1985 Andras Bozoki (ed.) The Round Table Talks of 1989: The Genesis of Hungarian Democracy Central European University Press: Budapest-New York 2002 Andras Bozoki “Negotiating Radical Change. Understanding and Extending the Lessons of the Polish Round Table Talks” in: Michael D. Kennedy, Brian Porter (eds), The Center for Russian and East European Studies, University of Michigan Press: Ann Arbor 1992 Andras Bozoki review of Rudolf L. Tokes “Hungary’s Negotiated Revolution” East European Constitutional Review, Spring Summer 1997, 10–102 Mark Brzezinski, The Struggle for Constitutionalism in Poland, Basingstoke, Hampshire: Macmillan 1998 James M. Buchanan, J. M. Tullock, The Calculus of Consent. Logical Foundations of Constitutional Democracy, The University of Michigan Press 1962 James Buchanan The Limits of Liberty. Between Anarchy and Leviathan Chicago and London 1975 Andrzej Bukowski “Wartości i aspliracje badanych a tworzenie bogactwa” in: G. Skąpska (ed.) Bieda i bogactwo w polskiej kulturze i świadomości Universitas: Kraków 2003 Milos Calda “The Round table Talks in Czechoslovakia” in Elster (ed.) The Round table Talks and the Breakdown of Communism The University of Chicago Press: Chicago and London 1996 Noel Calhoun Dilemmas of Justice In Eastern Europe’s Democratic Transitions 2004 Thomas Carothers “The Rule of Law Revival” in: Foreign Affairs, Vol. 77 No. 2 1998 Emilios A. Christodoulidis, Scott Veitch Lethe’s Law Hart Publishing: Oxford. 2002 Emilios A. Christodoulidis, “Truth and Reconciliation as Risks,” paper presented at the Legal Institutions and Collective Memories Workshop, International Institute for the Sociology of Law, September 22–24, Onati, Spain, mimeo 1999 Vojtech Cepl “Bottlenecks in the Transformation of Eastern Europe” Washington University Journal vol. 4/2000, p. 23ff Joanna Cichecka Rozliczenia z przeszłością łamania praw człowieka w Argentynie Kraków 2006 Aaron Clark, John Wildavsky The Moral Collapse of Communism: Poland as a Cautionary Tale, San Francisco: Institute for Contemporary Studies 1990 Aaron Clark, John Wildavsky “Chronicle of a Collapse Foretold: How Marx Predicted the Demise of Communism (Although He Called It “Capitalism”) in: Martin Krygier (ed.) Marxism and Communis: Posthumous Reflection on Politics, Society and Law Rodopi: Amsterdam-Atlanta 1994 Jean Cohen, Andrew Arato Civil Society and Political Theory The MIT Press: Cambridge, Massachusetts and London, England 1992 Roger Cotterrell Law’s Community. Legal Theory in Sociological Perspective, Clarendon Press: Oxford 1996 Adam Czarnota, Martin Krygier, Wojciech Sadurski Rethinking the Rule of Law after Communism: Constitutionalism, Dealing with the Past, and the Rule of Law Budapest, New York, CEU Press: 2005 Adam Czarnota “Between Nemesis and Justitia: Dealing with the Past as Constitutional Process” in: A. Czarnota, M. Krygier, W. Sadurski, ibidem Krystyna Daniel “Private Farm Ownership in a Changing Poland: Myth and Reality” “in: G. S. Alexander, G. Skąpska (eds.) A Fourth Way?…,” supra 1994



bibliography

241

Ralf Dahrendorf Reflections on the Revolutions in Europe Chatto and Winders: London 1990 Ralf Dahrendorf After 1989. Morals, Revolution and Civil Society St. Martin Press: New York 1997a Ralf Dahrendorf The Modern Social Conflict. An Essay on the Politics of Liberty Weidenfeld and Nicholson, New York 1988, 1997b Ives Dezalay, Bryant G. Garth (eds) Global Prescriptions. The Production, Exportation, and Importation of a New Legal Orthodoxy The University of Michigan Press: Ann Arbor 2002 Henryk Domański, Andrzej Rychard (eds.) Elementy nowego ładu, Warszawa 1998 Krzysztof Dubinski Magdalenka. Transakcja epoki Sylwa: Warszawa 1990 Ronald Dworkin Freedom’s Law. The Moral Reading of the American Constitution Harvard University Press: Harvard, Mass. 1996 John S. Earle, Roman Frydman, Andrzej Rapaczyński, Joel Turkowitz Small Privatization. The Transformation of Retail Trade and Consumer Services in the Czech Republic, Hungary and Poland CEU Press: Budapest, London, New York 1994 Shmuel Eisenstadt “The Moral Dimensions and Tensions of Modernity” in: Grażyna Skąpska et al. (eds) The Moral Fabric in Contemporary Societies Brill 2003 Grzegorz Ekiert, Jan Kubik Rebellious Civil Society. Popular Protest and Democratic Consolidation in Poland 1989–1993 The University of Michigan Press: Ann Arbor 1999 Jon Elster Rebuilding the Boat in the Open Sea. Constitution-Making in Eastern Europe Centre for European Studies, Nuffield College, Oxford, Discussion Paper No 24 1993 Jon Elster (ed.) The Round table Talks and the Breakdown of Communism Chicago University Press: Chicago and London 1996a Jon Elster “The Impact of Rights on Economic Performance “in: A. Sajo (ed.) Western Rights? Postcommunist Application Kluwer: Amsterdam 1996b Jon Elster, Claus Offe, Ulrich S. Preuss Institutional Design in Postcommunist Societies. Rebuilding the Ship at Sea Cambridge University Press: Cambridge 1998 Hella Engerer Privatization and Its Limits in Central and Eastern Europe Palgrave (St. Martin’s Press) Houndmills, Basingstoke, Hampshire, New York 2001 Steven M. Fish Democracy from Scratch: Opposition and Regime in the New Russian Revolution Princeton: Princeton University Press 1996 Michel Foucault The Order of Things. An Archeology of Human Sciences Vintage Books: New York 1994 David M. Frankford, “The Critical Potential of the Common Law Tradition” Columbia Law Review 1994, 94: 1076, 1076–1103 Janina Frentzel-Zagórska From One-party State to Democracy. Transition in Eastern Europe Rodopi: Amsterdam-Atlanta 1993 Lawrence B. Friedman The Republic of Choice Polish edition Republika wyboru Warszawa: Verba 1993 Tanya Frisby “The Rise of Organized Crime in Russia: Its Roots and Social Significance” Europe-Asia Studies, vol. 50 no. 1 1998 Kaja Gadowska Zjawisko klientelizmu polityczno-ekonomicznego Jagiellonian Unversity Press, Kraków 2002 Venelin I. Gannev “Notes on Networking in Postcommunist Socities” East European Constitutional Review Vol. 9, Number ½ Winter/Spring 2000, pp. 101–107 Rebecca Gates-Coon The Landed Estates of the Esterhazy Princes. Hungary during the Reforms of Maria Theresa and Joseph II, The John Hopkins University Press: Baltimore and London 1994 Volkmar Gessner, Armin Holland, Csaba Varga European Legal Cultures Dartmouth: Aldershot 1996 Anthony Giddens The Constitution of Society Cambridge: Polity Press 1984

242

bibliography

Mark Gillis “Lustration and Decommunization” in J. Priban, J. Young (eds.) The Rule of Law in Central Europe op. cit. pp. 56–81 Tomasz Gizbert-Studnicki “The Language of Law and Weltbild” in: Grażyna Skąpska et al. (eds.) Law in a Changing Society Festschrift for Professor Maria BoruckaArctowa, Jagiellonian University Press: Kraków 1992 Viktor W. Glasyrin, Wladimir N. Kudrjawzew, Wassili I. Nikitinski, Iwan S. Samostchschenko Effekivität der Rechtsnormen. Theorie und Forschungsmethoden Berlin: Staatsverlag der DDR 1982 Ervin Goffman “Frames and the Organization of Experience” in: C. Lemert, A. Branaman (eds.) The Goffman Reader Basil Blackwell, Oxford: 1997 Mirosława Grabowska, Tadeusz Szawiel Budowanie demokracji. Podziały społeczne, partie polityczne i społeczeństwo obywatelskie w postkomunistycznej Polsce PWN: Warszawa 2001 John Gray “From Postcommunism to Civil Society: The Reemergence of History and the Decline of the Western Model” Social Philosophy and Policy 10 (1993), 26–50 John Gray “You need an ounce of luck and …brains” interview with Beata PolanowskaSygulska in: B. Polanowska-Sygulska Faces of liberalism; interviews with Isaiah Berlin, John Gray, Steven Lukes, Jospeh Raz, Jagiellonian University Press: Kraków 2002 Dieter Grimm “Die Verfassung im Prozess der Entstaatlichung” in: Michael Brenner, Peter M. Huber, Markus Moestl Der Staat des Grundgesetzes. Festschrift für Peter Badura zum siebzigsten Geburtstag Mohr Siebeck: 2004 Peter Gunst, Agrarian Development and Social Change in Eastern Europe, 14–19th Centuries, Aldershot, Hampshire: Variorum 1996 Peter Haberle “Constitutional Developments in Eastern Europe from the Point of View of Jurisprudence and Constitutional Theory” Law and State, nr 46 Tübingen 1992 Jürgen Habermas Theorie des kommunikativen Handelns Vol. I. 1981, Suhrkamp: Frankfurt am Main 1981 Jürgen Habermas, Faktizität und Geltung Suhrkamp: Frankfurt am Main 1993 Gabor Halmai, Kim Lane Scheppele “Living Well is the Best Revenge: the Hungarian Approach to Judging the Past” in: A. A. James Adams (ed.) Transitional Justice and the Rule of Law in New Democracies University of Notre Dame Press: Notre Dame and London 1997 Vaclav Havel The Power of the Powerless. Citizens against the State in Central-Eastern Europe M. E. Sharpe, Inc., Armonk, New York 1985 Stefan Hedlund “Can Property Rights Be Protected by Law?” Eastern European Constitutional Review, Vol. 10, Number 1, Winter 2001 Joel Hellman “Constitutions and Economic Reforms in Postcommunist Transitions East European Constitutional Review Volume 5, Number 1, Winter 1996, pp. 46–57 Kathryn Hendley “Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law” East European Constitutional Review, Fall 1999 (Vol. 8 NR 4) pp. 89–95 Dusan Hendrych “Constitutionalism in the Czech Republic “in: Jiři Priban, James Young The Rule of Law in Central Europe Ashgate: Dartmouth 1999 Albert Hirschman Exit, Voice and, Loyalty: Responses to Decline in Firms, Organizations, and State, Cambridge, MA, Harvard University Press 1970 Steven Holmes “Cultural Legacies or State Collapse? Probing the Postcommunist Dilemma” Collegium Budapest, Institute for Advanced Study Public Lecture Series, Public Lecture No. 13, Budapest November 1995 Steven Holmes Passions and Constraints Chicago: Chicago University Press 1996 Luc Hyuse “Transitional Justice in Belgium, France and the Netherlands After World War II: Innovations, Transgressions, and the Lessons to be Learned” in: Adam Czarnota, Martin Krygier and Wojciech Sadurski Rethinking the Rule of Law… op. cit. str. 135–149



bibliography

243

Michael Ignatieff “Articles of Faith” in: Index of Censorship, No. 5, pp. 110–122 1996 Interview with World Bank President James D. Wolfenson “The New Development Approach and the Transition Economies” Transition Volume 10, Number 3, pp. 1–7 Interview with Joseph Stiglitz “Transition Economy is Still A-Well Defined Category” Transition Volume 8, Number 6, 1997 Antoni Kamiński, Bartłomiej Kamiński Korupcja rządów. Państwa komunistyczne wobec globalizacji Trio: Warszawa 2004 Hans Kelsen “La Garantie jurisdictionelle de la Constitution” Revue de Droit Public Nr. II, 197–257 Bela K. Kidaly, “Dictatorship, Lawful Revolutions, and the Socialist Return to Power” in: Lawful Revolutions in Hungary 1989–1994 (ed.) Bela Kidaly, Andras Bozoki, Atlantic Research and Publications, Inc., Boulder, Colorado 1995 Janos Kis “Between Reforms and Revolution: Three Hypotheses about the Nature of the Regime Change” in: Kidaly B. Bozoki A (eds.) Lawful Revolutions in Hungary 1989–1994 ibidem Janos Kis “From Costs and Benefits to Fairness: A Response to Richard Posner” East European Constitutional Review, Vol. 4, Nr. 3 Summer 1995, pp. 84–87 Stefan Kisielewski Wszystko inaczej Oficyna Wydawnicza: Warszawa 1986 Karl E. Klare “Legal Theory and Democratic Reconstruction: Reflections on 1989” in Gregory S. Alexander, Grażyna Skąpska (eds.) op. cit., pp. 310–334 Leszek Kołakowski Obecność mitu Prószyński i Ska: Warszawa 2005. Andrzej Kojder Sila i godnosc prawa, Warsaw 2002 Gyorgi Konrad Antipolitik. Mitteleuropäische Meditationen, Suhrkamp: Frankfurt am Main 1985 Lajos Kornai The Economy of Shortage Polish transl. Gospodarka w niedoborze PWN: Warszawa 1984 Zdzisław Krasnodębski “Demokracja peryferii” Słowo/obraz terytoria: Gdańsk 2003 Martin Krygier, Adam Czarnota (eds) The Rule of Law After Communism, Ashgate, Dartmouth 1999 Martin Krygier, “Institutional Optimism, Cultural Pessimism and the Rule of Law” in: Martin Krygier, Adam Czarnota (eds), ibidem, pp. 77–108 Martin Krygier “Marxism, Communism and the Rule of Law” in: M. Krygier (ed.) Marxism and Communism. Posthumous Reflections on Politics, Society and Law Rodopi: Amsterdam Atlanta 1994 Kalman Kulcsar Modernization and Law (Theses and Thoughts) Published by the Institute of Sociology, Hungarian Academy of Sciences: Budapest 1987 Krishan Kumar 1989: Revolutionary Ideas and Ideals University of Minnesota Press: Minneapolis 2001 Krishan Kumar “Społeczeństwo obywatelskie: rozważania na temat użyteczności historycznego terminu” in: Jerzy Szacki (ed.) Ani książę, ani kupiec – obywatel Społeczny Instytut Wydawniczy “Znak”: Kraków 1997 Jacek Kurczewski “Rządy mroczne i krwawe” in: Jacek Kurczewski (ed) Stalinizm IPSR Press: Warszawa 1991, 185–210 Jacek Kurczewski, “Prawem i lewem. Kultura prawna społeczeństwa polskiego po komuniżmie” Studia socjologiczne nr 2/2007, pp. 33–60 Jacek Kurczewski, “Transformation as Emancipation” Polish Sociological Review 2/ (126), 1999, pp. 215–230 Jacek Kurczewski, “Parliament and the Political Class in the Constitutional Reconstruction of Poland: Two Constitutions in One” International Sociology, Vol. 18, No 1, pp. 162–180, March 2003 Jacek Kurczewski “Słowo wstępne” in Jacek Kurczewski (ed) Stalinizm Warsaw University: Warsaw 1991

244

bibliography

Miroslav Kusy, Does the Rule of Law Exists in Slovakia, in J. Priban, J. Young, eds., op. cit 1999 George Lawson Negotiated Revolutions. The Czech Republic, South Africa and Chile Ashgate: Aldershot, England, Burlington, USA 2005 Jan Lazar “Die Veränderungen der Eigentumsordnung in der ehemaligen Tschechoslowakei während der Jahre 1948 bis 1989” in: Gerd, Bender, Ulrich Falk Recht im Sozialismus ibidem, 101–116 Vladimir Lenin, “The State and Revolution” In: Collected Works Moscow: Progress Publishers 1964 Janusz Lewandowski, Szomburg Jan “Property Reform as a Basis for Social and Economic Reform” Communist Economies 1/3, 1989, pp. 257–68 Juan J. Linz, Alfred Stepan Problems of Democratic Transition and Consolidation. Southern Europe, South America, and Postcommunist Europe, The John Hopkins University Press, Baltimore and London 1996 Niklas Luhmann, Die Gesellschaft der Gesellschaft Suhrkamp, Frankfurt am Main, 1997 Niklas Luhmann, Gesellschaftsstruktur und Semantik. Studien zur Wissenssoziologie der modernen Gesellschaft Vol. 1–3, Suhrkamp: Frankfurt am Main 1980 – 1989 Niklas Luhmann Political Theory of the Welfare State De Gruyter Verlag, Berlin 1981 Niklas Luhmann Soziale Systeme. Grundriss einer allgemeinen Systemtheorie Suhrkamp. Frankfurt am Main 1994 Steven Lukes “Introduction” in: Vaclav Havel et al. The Power of the Powerless. Citizens against the State in Central-Eastern Europe M. E. Sharpe, Inc., Armonk: New York 1985, pp. 11–22 Allen C. Lynch How Russia Is Not Ruled. Reflections on Russian Political Development Cambridge University Press: Cambridge 2005 Jean-Francois Lyotard “Memorandum über Legitimität” in: Peter Engelman (ed) Postmoderne und Dekonstruktion. Texte französischer Philosophen der Gegenwart, Stuttgart 1990 67–80 Ewa Łętowska, Janusz Łętowski Poland: Towards the Rule of Law Scholar: Warszawa,1996 Maria Łoś (ed.) The Second Economy in the Marxist States Basingstoke: Macmillan 1990 Maria Łoś “Lustration and Truth-Claims: Unfinished Revolutions in Central Europe” Law and Social Inquiry Nr 4/1995 Maria Łoś, Andrzej Zybertowicz, “Is Revolution a Solution? State Crime in Communist and Postcommunist Poland (1980–1995), in: Martin Krygier, Adam Czarnota (eds.), The Rule of Law… op. cit. 1999 Neal MacCormick “Liberalism, Nationalism and the Post-Sovereign State” in: Richard Bellamy and Dario Castiglione (eds) “Constitutionalism in Transformation. European and Theoretical Perspectives.” Political Studies, Vol. XLIV, Special Issue 1996 Inge Markovitz “Selective Memory: How the Law Affects What We Remember and Forget about the Past – The Case of East Germany” Law and Society Review, Vol. 35, Number 3 2001, pp. 513–564 Juan Mendez “An Emerging ‘Right to Truth’: Latin-Americam Contributions” in: Legal Institutions and Collective Memories S. Karstedt (ed.) Onati International Series in Law and Society, Hart Publishing, Oxford and Portland Oregon, 2009, pp. 39–62 Adam Michnik Szanse polskiej demokracji Aneks, London 1984 Armin Mitter, Stefan Wolle (eds) Ich liebe Euch doch alle!Befehle und Lagerberichte des MfS Januar-November 1989 BsisDruck: Berlin 1990 Edmund Mokrzycki “Od protokapitalizmu do posocjalizmu: marostrukturalny wymiar dwukrotnej zmiany ustroju” in: Elementy nowego ładu red. H. Domański, A. Rychard, Warszawa 1997



bibliography

245

Lech Morawski Wstęp do prawoznawstwa TNOiK: Toruń 2000 Lech Morawski “Positivist or Non-Positivist Rule of Law? Polish Experience of a General Dilemma” in: M. Krygier, A. Czarnota (eds.) Rule of Law after Communism, Ashgate, Dartmouth: Aldershot 1999 Witold Morawski Zmiana instytucjonalna PWN: Warszawa 2000 Witold Morawski, Wiesława Kozek (eds.) Załamanie porząku etatystycznego Department of Philosophy and Sociology of the Warsaw University Press: Warsaw 2005 Herbert Morris “Persons and Punishment” in: J. Feinberg, H. Gross (eds.) Philosophy of Law, Encino, pp. 572–585 1975 Carlos Santiago Nino The Constitution of Deliberative Democracy Yale University Press 1996 Ghia Nodia “How Different Are Postcommunist Transitions,” Journal of Democracy 1996, pp. 15–29 Douglass C. North Institutions, Institutional Change and Economic Performance New York and Cambridge: Cambridge University Press, 1993 Douglass C. North “Institutions” Journal of Economic Perspectives, 5/1990, 97–112 Claus Offe Der Tunnel am Ende des Lichts Campus: Frankfurt am Main 1994a Claus Offe “Designing Institutions for East European Transitions” Institut für Höhere Studien, Reihe Politikwissenschft 19 November 1994b, mimeo Antal örkeny, Kim Lane Scheppele “Rules of Law: The Complexity of Legality in Hungary” in M. Krygier, A. Czarnota “The Rule of Law…” op. cit., 55–76 Piotr Ogrodziński Pięć tekstów o społeczeństwie obywatelskim Instytut Studiów Politycznych PAN: Warszawa 1991 Wiktor Osiatynski “The Round table Talks in Poland” in Jon Elster (ed.) The Round table Talks…” op. cit. 1996 Wiktor Osiatynski “Constitutionalism and Rights in the History of Poland” in: Constitutionalism and Rights. The Influence of the United States Constitution Abroad L. Henkin, A. J. Rosenthal (eds.) New York 1990 Mark Osiel Law and Collective Memory Transaction Publishers: New Brunswick 1999 Andrzej Paczkowski “Poland. The Enemy Nation” in: Stephane Courtois, Nicolas Weth, Jean-Louis Panne, Andrzej Paczkowski The Black Book of Communism Harvard University Press, Harvard 1999 Peter Paczolay “Traditional Elements in the Constitutions of Central and East European Democracies” in: Krygier M., Czarnota A The Rule of Law… op. cit 1999 Lubos Palata, Lidove Noviny 11.12. 2007 Walerian Pańko O prawie własności i jego współczesnych funkcjach Silesian University Press: Katowice 1984 Vladimir Pastukhov “Law under Administrative Pressure in Post-Soviet Russia” East Central European Review, Summer 2002, (Vol. 11, NR 3) 66–74 Jan Patoczka Heretical Essays in the Philosophy of History Open Court: Chicago 1996 Jan Patocka “What Charter 77 Is and What It Is Not” in: G. H. Skilling (ed) Charter 77 and Human Rights in Czechoslovakia Allen and Unwin: London 1988 Hanna Pitkin “The Idea of a Constitution” Journal of Legal Education 37 1987, pp. 167–169 Adam Podgórecki Społeczeństwo polskie Wydawwnictwo Wyższej Szkoły Pedagogicznej: Rzeszów 1987 Istvan Pogany Righting Wrongs in Eastern Europe Manchester University Press: Manchester 1999 Karl Polanyi The Great Transformation. The Political and Economic Origins of Our Time Viking Press: New York 1944 Karl R. Popper (ed. by David Miller) Popper Selections Princeton, Princeton University Press 1966 Richard A. Posner “The Costs of Enforcing Legal Rights” East European Constitutional Review Vol. 4, Number 3, pp. 71–83

246

bibliography

Kazimierz Poznański Wielki przekręt. Klęska polskich reform Towarzystwo Wydawnicze i Literackie: Warszawa 2000 Kazimierz Poznański “Poland Transition to Capitalism: Shock and Therapy” in: Kazimierz Poznański (ed.) Stabilization and Privatization in Poland Kluwer Academic Publishers: Boston, Dordrecht, London 1993 Ulrich K. Preuss “Constitutional Power-Making for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution,” 14 Cardozo Law Review, nr 3–4, pp. 639–660 Ulrich K. Preuss “The Round Table Talks in the German Democratic Republic” in: Elster, J. (ed.) The Round Table Talks and the Breakdown of Communism, Chicago University Press, Chicago and London 1996 Ulrich K. Preuss, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution” Cardozo Law Review 1993 Jiri Priban “Constitutional Justice and Retroactivity of Laws in Postcommunist Central Europe” in: Jiri Priban, Pauline Roberts and James Young Systems of Justice in Transition. Central European Experiences since 1989 Ashgate: Aldershot, Angland and Burlington, USA 2003 Jiri Priban, Dissidents of Law Ashgate, Dartmouth 2002 Jiri Priban, James Young (eds) The Rule of Law in Central Europe Ashgate, Dartmouth 1999 Adam Przeworski Democracy and the Market Cambridge University Press, Cambridge 1992 Robert D. Putnam Making Democracy Work. Civic Traditions in Modern Italy Princeton University Press: Princeton 1993 John Rawls A Theory of Justice Cambridge, Massachusetts, Harvard University Press 1991 Christoph Reinprecht “The Role of Collective Memory in the Process of Democratization: The Austrian Experience” in: H. Pascher, G. Skąpska (eds.) A Work in Progress. Social and political Change in Contemporary Poland and Austria, Universitas: Kraków 2001 Pauline Roberts, Jiři Priban “The Central European Systems of Justice in Transition: Introductory Remarks” in: Priban, Roberts, Young (eds.) Systems of Justice in Transition…” ibidem Pavol Roharik “The Judiciary and Its Transition in Slovakia after 1989” in Priban, Roberts, Young (eds.) Systems of Justice in Transition…” ibidem Robert I. Rotberg, Dennis Thompson (eds.) Truth v. Justice. The Morality of Truth Commissions Princeton University Press, Princeton and Oxford 2000 Naomi Roth-Ariaza Impunity and Human Rights in International Law and Practice Oxford University Press: New York 1995 Jacques Rupnik “The Postcommunist Divide” Journal of Democracy, Vol. 10, Number 1, 1999 Cezary Rutkowski “Planowanie centralne a poziom życia” in: Witold Morawski, Wiesława Kozek (eds) Załamanie porządku etatystycznego, Department of Philosophy and Sociology, Warsaw University: Warszawa 2005, 87–106 Marian Rybicki, Andrzej Burda, Jerzy Stembrowicz “Konstytucja Polskiej Rzeczpospolitej Ludowej” in: Marian Kallas (ed) Konstytucje Polski PWN: Warszawa 1990, pp. 311–412 Andrzej Rychard, Antoni Sułek (eds), Legitymizacja. Klasyczne teorie i polskie doświadczenia PTS: Warszawa 1988 Wojciech Sadurski “Transitional Constitutionalism: Simplistic and Fancy Theories” in: Adam Czarnota, Wojciech Sadurski, Martin Krygier Rethinking the Rule of Law after Communism CEU Press: Budapest-New York 2006, 9–24



bibliography

247

Wojciech Sadurski “Constitutional Courts, Individual Rights, and the Problem of Judicial Activism in Postcommunist Central Europe” in Priban, Roberts, Young Systems of Justice in Transition ibidem Wojciech Sadurski “Sądwnictwo konstytucyjne a demokracja przedstawicielska,” Civitas nr 2 1998, pp. 39–80 Andras Sajo Limiting Government. An Introduction to Constitutionalism CEU Press, Budapest, New York 1999 Andras Sajo “The Round table Talks in Hungary” in J. Elster, op. cit. 1996 Andras Sajo “How the Rule of Law Killed Hungarian Welfare Reform” Eastern European Constitutional Review Vol. 5, Number 1, Winter 1996 pp. 31–40 Andras Sajo “Reading the Invisible Constitution. Judicial Review in Hungary” 15 Oxford Journal of Legal Studies, 1995, pp. 253–267 Andras Sajo “New Legalism in East Central Europe: Law as an Instrument of Social Transformation” Journal of Law and Society, Vol. 17 1990, pp. 329–351 Andras Sajo “Law and Legal Scholarship in the Happiest Barrack and Among the Hungry Liberated: Personal Recollections” in: Martin Krygier (ed) Marxism and Communism: Posthumous Reflections on Politics, Society and Law Rodopi: Amsterdam- Atlanta, GA 1994, 219–234 David Satter Darkness at Dawn: The Rise of the Russian Criminal State New Haven, CT: Yale University Press 2003 Valeri Savickij “War die KpdSU nun eine verfassungsgemässe Organization?” in: Recht in Ost und West 3/2002 Kim Lane Scheppele “The Constitutional Basis of Hungarian Conservatism” Eastern European Constitutional Review Vol. 9, Number 4, Fall 2000, pp. 51–57 Theodor Schweisfurt, Ralf Alleweldt “Die neuen Verfassungstrukturen in Osteuropa” in: Politische und ökonomische Transformation in Osteuropa Berlin: Berlin Verlag 1997 Andrew Schwartz “Market Failure and Corruption in the Czech Republic” Transition, Vol. 8, Number 6, December 1997, pp. 4–5 Herman Schwartz “A Brief History of Judicial Review” in: The Self-Restraining State: Power and Accountability in New Democracies Andreas Schedler, Larry Diamond (eds.), Lynne Rienner Publishers: Boulder, Colorado 1999, 145–150 Adam Seligman The Idea of Civil Society The Free Press: New York, Oxford, Singapore, Sydney 1992 Amartya Sen “The Formulation of Rational Choice” American Economic Review Vol. 84 (2) 1994, pp. 385–90 Andrei Sinyavskij Soviet Civilization. A Cultural History New York: Arcade Publishing 1991 Jirina Siklova “Everyday Democracy in the Czech Republic: Disappointments or New Morals in a Time of Neo-Normalization” in: The Moral Fabrics in Contemporary Societies (eds) Grazyna Skapska, Annamaria Orla-Bukowska, Krzysztof Kowalski, Brill, The Netherlanden 2003 Jirina Siklova “Lustration or the Czech Way of Screening,” East European Constitutional Review, Winter 1992 Barbara Skarga “Stalinizm” in: J. Kurczewski (ed.) Stalinizm Uniwersytet Warszawski, Instytut Profilaktyki Społecznej i Resocjalizacji, Warszawa 1991, 3–6 Grażyna Skąpska “The Rule of Law from the East Central European Perspective” Law and Social Inquiry, vol. 15, nr 4 1990, pp. 699–706 Grażyna Skąpska “Law and Social Activity: The Legacy of French Revolution” in: Z. Bankowki (ed) Revolutions in Law and Legal Thought Aberdeen University Press: Aberdeen 1991, pp. 42–52 Grażyna Skąpska, Prawo i dynamika społecznych przemian Kraków: Jagiellonian University Press, Kraków: 1992

248

bibliography

Grażyna Skąpska “Paradigm Lost? The Constitutional Process in Poland and the Hope of a Grassroots Constitutionalism” in: M. Krygier, A. Czarnota (eds.) The Rule of Law…op. cit. pp. 149–175 Grażyna Skąpska “Komunitaryzm i indywidualizm w polskich konstytucjach – czyli o pewnym nieporozumieniu w debacie publicznej” in: Justyna Miklaszewska (ed) Liberalizm u schyłku XX wieku Meritum: Kraków 1999 Grażyna Skąpska “O zasobach indywidualnych, społecznych oraz kulturowych w procesach tworzenia kapitalistycznej gospodarki” in: G. Skąpska (ed.) Buddenbrokowie czy piraci? Polscy przedsiębiorcy okresu głębokich przemian Kraków: Universitas 2002 Grażyna Skąpska “Facing Past Human Rights Abuse: a Way from a Liquid to a Solid Society” in: J. Priban (ed.) Liquid Society and Its Law Ashgate: Aldershot 2007, 115–130 Grażyna Skąpska “Restitutive Justice, Rule of Law and Constitutional Dilemmas” in: A. Czarnota, M. Krygier, W. Sadurski Rethinking the Rule of Law after Communism CEU Press: Budapest-New York 2006, 211- 234 Grażyna Skąpska “Rule of Law, Economic Transformation and Corruption after the Fall of the Berlin Wall” Contemporary Problems of the Rule of Law, No 1/2009 Jerzy Sobczak “Polski small business – próba rekonstrukcji jego kulturowych wzorów” in: G. Skąpska, ibidem, pp. 35–66 Laszlo Solyom, Brunner G Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court The University of Michigan Press, Ann Arbor 2000 Laszlo Solyom “The Role of Constitutional Courts in the Transition to Democracy, with Special Reference to Hungary” International Sociology, Vol. 18, Number 1 March 2003, pp. 133–161 Jadwiga Staniszkis Postkomunizm. Próba opisu Wydawnictwo Słowo/obraz/terytoria: Gdańsk 2001 Jadwiga Staniszkis Ontologia socjalizmu Wydawnictwo In Plus: Warszawa 1989 David Stark “Can Designer Capitalism Work in Central Nad Eastern Europe” Transition Volume 3, Number 5, May 1992 David Stark “Recombinant Property in East European Capitalism” American Journal of Sociology 101/4 1996, pp. 993–1027 David Stark “The Hidden Character of East European Capitalism: Recombinant Ownership” Transition, 6/11–12, pp. 13–15, 1995 David Stark, Laszlo Bruszt Postsocialist Pathways. Transforming Politics and Property in East Central Europe, Cambridge University Press, Cambridge 1996 Jerzy Stelmach “Filozoficzne aspekty dyskusji o państwie prawnym” in: Grażyna Skąpska et al. (eds) Prawo w zmieniającym się społeczeństwie. Księga pamiątkowa dla profesor Marii Boruckiej-Arctowej Adam Marszałek and Jagiellonian University Press: Kraków 1992, pp. 221–228 Jerzy Stembrowicz “Konstytucja PRL z 1952 r. na tle nowelizacji 1954–1980” in: M. Kallas (ed.) Poland’s Constitutions ibidem, pp. 377–418 Joseph Stiglitz “Development Based on Participation – A Strategy for Transforming Societies” Transition Vol. 9, Number 6, December 1998, pp. 1–3 Joseph Stiglitz Wither Socialism The MIT Press: Cambridge, Massachusetts 1996 Anthony Stone Sweet Governing with Judges. Constitutional Politics in Europe Oxford University Press, Oxford 2000 Jonathan Sunley, “Postcommunism: An Infantile Disorder” The National Interest, 44 1996, 3–15 Cass Sunstein “Against Positive Rights” East European Constitutional Review, Vol. 2, Nr. 1 1993a Cass Sunstein The Partial Constitution Cambridge, Massachusetts: Harvard University Press 1993b Cass Sunstein “Something Old, Something New” in: Sajo A. (ed.) Western Rights? Postcommunist Application Kluwer, The Hague, London, Boston 1996



bibliography

249

Cass Sunstein “On the Expressive Function of Law” Eastern European Constitutional Review Vol. 5, Number 1, Winter 1996, pp. 66–72 Jerzy Szacki, Liberalism po komunizmie, Znak: Krakow 1994 Jerzy Szacki “Naród i społeczeństwo obywatelskie: republika obywateli” Przegląd polityczny 29/1995 Erzsebet Szalai Socialism. An Analysis of Its Past and Future Central European University Press: Budapest-New York 1991 Martin Szimeczka, “Obnoveni poradku” as cited in Jiri Priban 1999 op. cit. 31, 32 Istvan Szelenyi “Mitteleuropa auf dem Weg in die kapitalistische Wirtschaftsordnung” in: Der Schock der Freiheit. Ungarn auf dem Weg in die Demokratie J. Bayer and R. Deppe (eds.), Frankfurt am Main 1993. Istvan Szelenyi, Szonja Szelenyi “Założenia teoretyczne i metodologia badań” in: I. Szelenyi, D. Treiman, E. Wnuk-Lipiński Elity w Polsce, w Rosji i na Węgrzech Warszawa 1995 Piotr Sztompka The Sociology of Social Change, Blackwell: Oxford 1996 Piotr Sztompka “Civilizational Incompetence: The Trap of Postcommunist Societies” vol. 22, 2 Zeitschrift fuer Soziologie 1993 Piotr Sztompka Trust: A Sociological Theory Cambridge University Press, Cambridge 1999 Piotr Sztompka “Postcommunist Trauma. The Case of Poland” in: H. Pascher, G. Skąpska (eds.) A Work in Progress. Social and Political Change in Contemporary Poland and Austria Universitas: Kraków 2001 Hanna Świda-Ziemba “Stalinizm i społeczeństwo polskie” in: Stalinizm J. Kurczewski (ed.) Warsaw University Press, Warsaw 1991, 15–96 Jacek Tarkowski “Sprawność gospodarcza jako substytut legitymizacji w Polsce powojennej” in: Andrzej Rychard, Antoni Sułek (eds) Legitymizacja. Klasyczne teorie i polskie doświadczenia Polish Sociological Association and Warsaw University Press: Warszawa 1988, pp. 239–268 Jacek Tarkowski “Ryzyka prywatyzacji a polska nomenklatura – nowa klasa przedsiębiorców” in: L. Stetkiewicz (ed) Socjologia świata polityki vol. I, PWN: Warszawa 1994 Caroline Taube Constitutionalism in Estonia, Latvia and Lithuania University of Uppsala: Uppsala 2001 Ruti G. Teitel Transitional Justice Oxford University Press, Oxford 2000 Gunther Teubner “Alienating Justice: on the added Value of Twelfth Camel” (Polish transl) “Sprawiedliwość alienująca: o wartości dodanej dwunastego wielbłąda” Ius et Lex nr 1/2002 107–132 Vladimir Tishmeanu Fantasies of Salvation. Democracy, Nationalism and Myth in Postcommunist Europe, Princeton University Press, Princeton 1998, Polish ed. 2002 Rudolf Tokes Hungary’s Negotiated Revolution Cambridge University Press, Cambridge 1996 Aviezer Tucker “Networking” East European Constitutional Review, Vol. 9, Number ½ Winter/ Spring 2000, pp. 107–112 Petr Uhl “The Alternative Community as Revolutionary Avant-garde” in: Vacav Havel et. al The Power of the Powerless, pp. 188–197 Renata Uitz “Constitutional Courts and the Past in Democratic Transition” in: Adam Czarnota, Martin Krygier and Wojciech Sadurski Rethinking the Rule of Law after Communism CEU Press-Budapest: New York 2005 Thorstein Veblen The Theory of the Leisure Class, New York 1952 Jiri Vecernik and Petr Matteju The Years of Rebuilding Capitalism: Czech Society after 1989, Coronet Books, Inc. 1999 Andrzej Walicki Trzy patriotyzmy, Warszawa 1991 Jacek Wasilewski “Socjologiczny portret polskiej elity potransformacyjnej” in: J. Wasilewski (ed.) Raport wstępny z badań “Elita rzadząca i władza elity” Warszawa 1999

250

bibliography

Max Weber The Protestant Ethics and the Spirit of Capitalism Charles Scribner’s Sons: New York 1958 Max Weber Economy and Society: An Outline of Interpretive Sociology (ed. by Gunther Roth and Claus Wittich) Bedminster Press: New York 1968 Janine Wedel Collision and Collusion: The Strange Case of Western Aid to Eastern Europe Palgrave: New York 2001 Janine Wedel “‘State’ and ‘Private’: Up Against the Organizational Realities of Central and Eastern Europe and the Former Soviet Union” Paper prepared for the National Council of Eurasian and East European Research and the National Institute of Justice Washington, D.C. December 2001 Linda Weiss, John Hobson States and Economic Development Cambridge, Polity Press 1995 Jerzy Zajadło Odpowiedzialność za mur. Procesy strzelców przy murze berlińskim, Arche: Gdańsk 2003 Jan Zielonka Europe Unbound: Enlarging and Reshaping the Boundaries of the European Union Routledge: London 2002 Zdzisław A. Ziemba “Prawo karne Polski Ludowej w latach 1945–1956” in: J. Kurczewski (ed.) Stalinizm, Warsaw University Press 1991, pp. 97–160 Klaus Ziemer “Politischer Wandel in Osteuropa. Die Massgeblichen innenpolitischen Kraefte” in Georg Brunner (ed.) Politische und oekonomische Transformation in Osteuropa Berlin: Berlin Verlag 1997, pp. 6–11 Marek Zirk-Sadowski “Application of Law and the European Integration” in: Jerzy Hausner, Mirosława Marody (eds.) Three Polands. Monitoring III, Friedrich Ebert Shifting: Warsaw 1998

Other sources Texts of constitutions: â•…Constitution of the Republic of Poland: www.sejm.gov.pl/prawo/konst/angielski/ kon1-htm â•…Constitution of the Czech Republic: www.psp.cz/cgi-bin/eng/docs/laws/constitution.html â•… Constitution of the Republic of Hungary â•… http: //confinder.richmond.edu/country.php â•… Constitution of Slovakia: http://confinder. Richmond.edu/country.php East European Constitutional Review Transition: The Newsletter About Reforming Economies Beyond Transition: The Newsletter About Reforming Economies, http://www.world bank.org.transitionnewsletter; www.cefir.ru

Index access rights╇ 195, 201, 202, 205, 206, 210, 211, 212, 213, 214, 215, 217, 218 alienating injustice╇ 136, 182 alienating justice╇ 178, 180, 181, 182 anarchy╇ 203, 204, 207 semi-legalized╇ 205, 208, 210 anti-politics╇ 67, 112, 113, 114 axiological rationality╇ 67, 78 Charter 77╇ 20, 33 civil courage╇ 116, 117, 152, 153 civil prudence╇ 117, 118 civil religion╇ 37, 227 civil society╇ 2, 19, 20, 24, 26, 37, 53, 55, 64, 71, 72, 78, 96, 98, 99, 102, 114, 115, 118, 131, 138, 139, 152, 189, 199, 202 class enemy╇ 149, 153, 154 collective memory╇ 137 communicative rationality╇ 35, 41, 70, 78, 163 communism╇ 3, 9, 20, 39, 65, 81, 93, 94, 97, 113, 120, 126, 146, 151 constitution╇ 5, 6, 7, 8, 9, 10, 15, 17, 20, 37, 44, 51, 52, 67, 72, 74, 76, 77, 78, 105, 118, 170, 174 Czech╇ 11, 48 democratic╇ 4, 46, 56, 83, 105, 106, 125, 128, 163 European╇ 21 Hungarian╇ 11, 31, 33, 45 invisible╇ 5, 10, 45, 226, 230, 231, 232 juridical╇ 19, 84 living╇ 193 non-fictive╇ 72 “paper”╇ 17, 129 Polish╇ 11, 31, 33, 46 postcommunist╇ 5, 120, 133 Slovak╇ 11, 48 Stalinist╇ 81, 83, 84, 86, 88, 90, 91, 93, 103, 108, 116, 143 constitutionalism╇ 4, 5, 9, 12, 57, 104, 105, 107, 108, 117 American╇ 42 authoritarian╇ 106

binding╇ 10 communist╇ 90 Czech╇ 11 democratic╇ 103, 128 fictive╇ 10, 136 German╇ 39, 51, 72, 101, 102 grass-roots╇ 201, 202, 203 Hungarian╇ 11 hypocritical╇ 13, 60 liberal╇ 14, 52, 59, 166, 174, 198, 199, 201 limited╇ 196, 200 non-fictive╇ 65, 73 Polish╇ 111 postcommunist╇ 10, 12, 13, 14, 15, 20, 56, 61, 128, 131, 135, 217, 221, 222, 225, 228, 229, 230, 231, 232 postdictatorial╇ 78 postnational╇ 21 reflexive╇ 65, 68, 79 Stalinist╇ 81, 82, 86, 88, 91, 94, 98, 103, 143, 185, 186, 224 Western╇ 52 constitutional history╇ 16, 39, 102, 103 105, 108, 109, 123, 126 constitutional intrumentalism╇ 57, 77 constitutional moment╇ 26 constitutional patriotism╇ 8, 227 constitutional community╇ 51, 61, 68, 69, 70, 71, 74, 75, 78, 101, 118, 135 liberal╇ 52, 174, 180, 218 postcommunist╇ 176 constitutional instrumentalism╇ 57, 60, 61, 71, 77 constitutional rhetoric╇ 7, 15, 70, 71 constitutional semantics╇ 19, 67, 70, 71, 98, 101, 140, 203, 227 Stalinist constitutional semantics╇ 90, 153 constitutional consensus╇ 6, 8, 9, 11, 12, 25, 202 fictitious╇ 135 negative╇ 81, 82, 91, 94, 97, 101, 112, 152

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positive╇ 99, 107, 137, 178, 180, 182, 186, 194, 195, 198, 199, 201, 203, 214, 217, 230 cultural capital╇ 5, 11, 52, 72, 76, 229 decommunization╇ 45, 69, 129, 142, 161, 168, 169, 217, 226, 231 Democratic Forum╇ 20, 32, 45 democratic capitalism╇ 198, 199, 202, 212, 213, 218 East Central Europe╇ 1 economic neoliberalism╇ 4 empty space╇ 61, 62, 63, 65, 71, 78, 79, 108 enemy within╇ 149, 152 expropriation╇ 143, 146, 153, 154, 155, 156, 157, 158, 159, 160, 182 frames╇ 66 Gdańsk Agreement╇ 24, 26, 43, 64, 69, 112, 191, 202 goulash communism╇ 95, 152, 206 hard cases╇ 69 human dignity╇ 3, 6, 69, 72, 74, 102, 114, 130, 131, 136, 138, 140, 142, 174, 231 Hungarian Constitutional Court╇ 10, 38, 41, 45, 169, 172, 189 hyper-reality╇ 8, 9, 12, 135, 174, 180 insider privatization╇ 213 intrumental rationality╇ 35, 78 judicial activism╇ 231 lawful revolutions╇ 26, 38, 39, 48 law-governed state╇ 6, 7, 12, 67, 119, 120, 130, 131, 135, 136, 137, 138, 140, 141, 142, 144, 147, 148, 161, 166, 167, 170, 171, 172, 173, 174, 176, 177, 178, 179, 180, 182, 223, 225, 226, 229, 231 legal positivism╇ 119, 120, 122, 129, 131, 172, 175, 229 legality╇ 14, 19, 26, 37, 41, 42, 43, 48, 63, 111, 119, 121, 124, 141, 181, 226 formal╇ 40, 41 hypocritical╇ 19 socialistic╇ 8, 88, 89, 99 legal hypocrisy╇ 174 legalized illegality╇ 175 liberalism╇ 80, 197

living within the truth╇ 113, 116, 117, 118, 130, 131, 137, 141, 166, 173 lustration╇ 45, 69, 129, 142, 161, 168, 169, 170, 172, 174, 177, 217, 22, 231 economic╇ 194 wild╇ 168 market economy╇ 3, 11, 13, 201, 203, 223 Marxism╇ 87, 97 Marxism-Leninism╇ 90 mass privatization╇ 209, 210, 213, 217 modern religion╇ 74 modernization╇ 16, 68, 81, 91, 92, 104, 119, 122, 123, 124, 146, 151, 156, 196 moral impulse╇ 138, 173, 182 moral revolutions╇ 194 nationalization╇ 84, 87, 133, 138, 142, 143, 146, 153, 155, 156, 157, 158, 159, 160, 167, 186 negotiated transformations╇ 35, 63 New-Hobbesian Dilemma╇ 200, 212, 219 neoliberal orthodoxy╇ 12 neonormalization╇ 55 nomenklatura╇ 30, 32, 44, 55, 177, 187, 188, 204, 208, 225 normalization╇ 91, 152 parallel polis╇ 112, 113, 130, 228 peaceful revolutions╇ 3, 26, 102, 180 political capitalism╇ 187, 195, 203, 210, 215, 216, 218 Polish Constitutional Tribunal╇ 46, 168, 169, 172 postcommunism╇ 52, 57, 178, 221 privatization╇ 12, 35, 41, 46, 55, 186, 187, 190, 191, 192, 193, 194, 195, 203, 204, 206, 208, 209, 211, 213, 214, 217, 218 crawling╇ 214 spontaneous╇ 205, 207, 209 voucher╇ 214 precommitment strategy╇ 51, 96 public enlightenment╇ 137, 138 public morality╇ 6, 19 public sphere╇ 2, 54, 68, 76, 82, 113, 114, 118, 124, 130, 161, 165, 169, 173, 209, 228 rational bargaining╇ 36, 37, 210, 211, 212 rational choice╇ 53, 58, 78, 79



index

recombinant property╇ 192, 204, 215 reprivatization╇ 158, 216 restitution╇ 133, 136, 137, 138, 139, 140, 143, 145, 146, 158, 159, 160, 161, 167, 171, 175, 177, 180, 182, 226 right to truth╇ 136, 137, 138, 139, 161, 173 right to remembrance╇ 136, 137, 138, 173, 178 rule of law╇ 6, 7, 9, 19, 38, 57, 67, 119, 120, 124, 131, 167, 178, 181, 186, 197, 199, 200, 218 rupture╇ 4, 49, 75, 76, 179, 223, 224 self-limiting revolutions╇ 26, 63 semantic steering╇ 73, 74, 89, 101, 102, 131 small privatization╇ 206, 209, 213, 217 small stabilization╇ 96, 152

253

social market economy╇ 47, 69, 186, 198, 199, 218 “Soliarność”╇ 31, 33, 43 Stalinism╇ 4, 91, 93, 98, 136, 147, 148, 149, 151, 152, 153, 156 late╇ 116, 147, 152 suspect nationality╇ 149, 153 theoretical fiction╇ 8 transitional justice╇ 129, 176 totalitarianism╇ 148, 152 communist╇ 81 frozen╇ 91, 94 late╇ 41, 117 Stalinist╇ 102, 116, 142 traitor to the nation╇ 149, 153 transitional justice╇ 129, 225 victim’s dignity╇ 161