Vol. 14 No. 4 (April 2004), pp.288-294

 

SYSTEMS OF JUSTICE IN TRANSITION. CENTRAL EUROPEAN EXPERIENCES SINCE 1989, by Jiři Přibáň, Pauline Roberts and James Young (eds.). Aldershot: Ashgate Publishing, 2003. 242pp. Hardback. $99.95. £57.00. ISBN: 0-7546-2317-3

 

Reviewed by Martin Krygier, University of New South Wales Law School. Email: m.krygier@unsw.edu.au

 

 European communism, one of the two longest-lived protagonists in Eric Hobsbawm’s “short twentieth century,” ended with a whimper, not a bang. But it was a resounding whimper. The geopolitical atlas has been transformed. A world-historical ideological contest has ended. And a unique system of monopolistic political, social and economic control and organization, characterized by Ernest Gellner as “Caesaro-Papism-Mammonism,” has almost disappeared, unlamented, from the globe.

 

But not without trace. Enthusiasts who imagine that “regime change,” wherever it occurs, simply involves putting right things in place of wrong ones have often been embarrassed, and they continue to be. There are many reasons for such embarrassment, but one is that a lot stays around, to complicate, penetrate, and at times subvert, any novel initiative. It includes hardware on the ground and software in people’s heads, institutions and attitudes, ways of doing and ways of thinking. None of this is easy to shift or re-mold. That does not mean that nothing new can or should be tried, nor that past legacies determine present and future possibilities. But it does mean that the past matters, always. Indeed, the history of post-communist transitions suggests that L.P. Hartley was quite wrong to suggest that “the past is another country. They do things differently there.” Often it’s just the same country, and they do the same things. More apposite is Faulkner’s observation, that “the past is never dead. It’s not even past.”

 

This complicates the task of those “specialistes du post,” as Claude Karnoouh has dubbed them, who have poured into the post-communist region (and other regions), advice manuals in hand. That is true in general, and it is true particularly in relation to legal transformation. What do you need to know? How a good legal institution works where it works? But transplants are typically uprooted from a lot that their working might depend upon, when they are called upon to travel. They land in territory where much that is already firmly embedded is often quite unfamiliar and not always welcoming. Are there examples of successful transplantations elsewhere? But why imagine that every transplant will encounter the same reception, wherever it is sent? Should we then stick to local knowledge? But “the way we do things here” is often the problem. Moreover, changes happen and can be made to happen, and often it is better that they do. We are not always impotent, nor is history just a recycling of familiar patterns. And among the things that can be learnt from history is that some things [*289] long done are better undone. But how? Regimes “in transition” are fascinating precisely because they pose this question with urgency, in contexts where every choice is inescapably enmeshed in complex and dialectical interplays of legacies and initiatives, familiar and novel, local and exotic. Many things, often in tension, compete simultaneously for attention. Too often we attend to too few of them, following our particular national and/or disciplinary provenance, experience, biases (see Krygier 1999). We need to mix things up more, for the world does so anyway without asking our permission.

 

Among the virtues of the book under review is its attempt to address some of these tensions and complexities, and to mix the perspectives it brings to bear on them, particularly by combining comparative with local discussion and testimony. The book deliberately mixes disciplines - sociology, political theory, law, legal philosophy - and provenances - courts, universities, local and international. All the authors are originally from Central Europe, but as the book goes on, the balance shifts from comparativists and theorists to more particular accounts of specific developments by participants from particular countries. This leads to occasional unevenness of the contributions, but it also reminds us how many sorts of things we need to know, to know something useful about SYSTEMS OF JUSTICE IN TRANSITION.

 

The focus of the book is almost exclusively on courts, part of the “system of justice” but not the whole of it. Other parts of that system are discussed only as they affect the place and role of the judiciary. But you can’t discuss everything, and what is discussed is important enough. Apart from two more wide-ranging comparative and theoretical pieces by Wojciech Sadurski and Jiři Přibáň, the essays in the book deal with Poland, Hungary, the Czech Republic, Slovakia, and Slovenia.

 

These countries are widely considered among the most successful exponents of post-communist “transition.” All of them are four-square members of what was once known as Central (or Central Eastern), more broadly post-communist, Europe. Currently they are trying to drop the adjectives, without the seams showing. All of them have satisfied the European Union that they meet the 80,000 pages of the acquis communautaire, and in particular for our purposes that passage of the “Copenhagen criteria” of accession that requires “the stability of institutions guaranteeing … the rule of law.” So it is of interest how experts on and from these leading contenders for successful transformation assess the achievement.

 

The book’s overarching concern is to explore the interplay in post-communist central Europe between “[r]evolutionary changes and recent transformations in postcommunist Central Europe … [and] under the surface of rapid constitutional changes … much slower processes of institutional and cultural changes in which continuity and persistence play a much more substantial role” (p.1). Most chapters emphasize the continuing presence of the past-or, pasts. For, while communism imposed common and crucial systemic features on every country in the bloc, it was not identical in every country. Moreover, communism [*290] was not the whole of any country’s presently-relevant past but just its most recent stage. What went before differed from place to place, though there were commonalities, particularly deriving from the dominance of the Austro-Hungarian Empire in most of the countries discussed in this book. (Partitioned Poland was carved up between Austria-Hungary in the south, Prussia in the north west, and Russia in the east, from the end of the eighteenth century to the beginning of the short twentieth.) Law had much greater significance in Austria-Hungary than in, say, Russia, but it is also true that “[t]ypically, power in this region was either not restrained by legal measures, or only slightly bound, and there is also a long tradition of evading law” (p.123). This remained true during the brief period of interwar independence, brought to its shocking end by the War and Nazi occupation (or in Slovakia and Hungary collaboration). After the War, Communism introduced the doctrine that Lenin had called “the unity of power”-law was conceived of as one among a range of instruments of power, all subservient to the Party. Institutions, among them courts in a rather minor and dependent way, were vehicles, “transmission belts,” of power. There was in principle no room for notions of independence or institutions of restraint. That doctrine was preached everywhere, though the zeal with which it was practised differed with place and with time.

 

Of the countries discussed here, it was at its most severe and repressive in Czechoslovakia, both before the Prague Spring of 1967-68, and with a vengeance afterwards. This is well described in a powerful piece by Eliška Wagnerová, former Chief Justice of the Czech Supreme Court and current vice-President of the Constitutional Court, and also in a perceptive discussion by Alexander Bršstl, Justice of the Slovak Constitutional Court. Both concur that “[t]he role of judges in the 1948-89 period was a demonstration of the dominance of the political power of the state over the judges. The greatest demand on the judges was a readiness to adapt. … In such an environment, the development of independent personalities, willing to serve justice, was impossible. The law was defined only according to the exercise of power and a formal gown which could cover any unjustice [sic]” (p.168); “Czechoslovak and Czech history has shaped a judge as an obedient and subordinate civil servant. Provided s/he was sufficiently dexterous or cynical, or at least careless of the destiny of individuals, s/he could successfully move high in his or her career, regardless of the vertiginous changes in the political system” (pp.177-78).

 

Both Wagnerová and Bršstl stress that the attitudes formed in these times did not simply disappear in 1989. On the contrary, Bršstl observes, “the real problem is to change the enduring old mentality. ‘Crooked paths’ became almost standard and part of life in place of established and well-functioning institutions. They were connected with a relevant ‘know-how.’. . . That was the beginning of a vicious circle of ‘services’ and ‘counter-services,’ of ‘advantages’ and ‘counter-advantages’ destroying the aim and the basis of the competence-founded activity of state authorities and institutions. The problem is how to uncover the rotten foundations of such a state and how to transform [*291] them into the bases of a functioning system” (p.144). No small problem.

 

Hungary differed in important ways, as two excellent chapters, by Zoltan Fleck and Lászlo Boros, emphasize. After a particularly harsh period of repression in the late 1940s and early ’50s, and the bloody suppression of the 1956 Revolution, Hungarians’ acquiescence came to be wooed by their leaders with “goulash communism,” a mixture of more food and more freedom than before and than elsewhere in the bloc, in exchange for political placidity. Hungary came to appear (to some) the “merriest barrack” in the camp. That was not very merry, but it had legal ramifications. In what Boros calls “soft dictatorship,” there was a reliance on at least superficial legality and tolerance of some judicial independence, at least in the shifty category of non-political matters, with the result that “the institutional independence of the justice system increased steadily and it reached the highest level ever achieved in an autocracy by the early 1980s” (p.200). “Non-political” was not a stable category, subject to arbitrary re-definition by the rulers of the Party, but typically political cases were dealt with outside the courts, by, for example, the secret police, and the result of soft dictatorship was that there were much greater continuities between present reform efforts and prior pre-collapse efforts than in Czechoslovakia, East Germany, or most other countries in the region-for its own reasons, Poland also saw continuous efforts at legal reforms from the time that Solidarity was crushed by auto-invasion, in December 1981, in the regime’s futile attempt to find in law some legitimacy that neither ideology nor performance could give it.

 

These elements of independence and continuities of reform are distinctive and important, but so too are other continuities more reminiscent of the communist/post-communist norm. In particular, there was the “detrimental socialization [of judges] and long tradition of being subordinated” and more broadly, what Fleck calls “our biggest problem,” “the hiatuses of political culture: the view of institutional autonomy as an uncomfortable hindrance to political will” (p.136). This view is not confined to the judges, out of some innate modesty, but long insisted upon by overweening governments and expected by undemanding citizens. It contributes to the low prestige of the judiciary among all concerned. Both authors emphasize not merely that judicial institutions are weak but that they are expected to be weak, and not much liked.

 

In all the countries of the region, citizens tended also to see the law as an instrument, but of purposes other than their own. So much other, indeed, that the normativity of law was dramatically low. Law was imposed, and one might have to deal with it, even take it seriously as an element in, or a hurdle in the way of, one’s aims-but not as a normative resource or morally reinforced constraint. Many articles in this collection suggest that this is another inheritance which has not vanished.

 

But if much from the past remains in the present, not everything in the present is a congealed inheritance. Many things are new. And new and old interact, sometimes in salutary ways, as when the Polish Ombudsman teaches suspicious citizens that public institutions are not all [*292] hostile to them. But they interact in other ways too. Weak, demoralized institutions do not benefit from being starved of funds and facilities, or overwhelmed both by new cases arising from new pathologies, such as dramatic increases of organized and unorganized crime, and from what might be new successes, such as litigation by thousands of people who might not have bothered before. In Poland, Adam Zielinski tells us, “[d]emocratic transformations resulted in a significant increase in the number of cases filed with courts. Being the result of the scope of the courts’ competencies, the increased role of law in public life, the disappearance of fears of using the courts’ protection and the strengthened value of currency, thanks to which litigation on property rights became worthwhile, the number of cases in the courts increased rapidly” (p.117). No exaggeration: in 1989, Polish ordinary courts heard 1,903,000 cases; in 1994 the figure was 4,520,000; in 2000, 7, 404,000. No surprise that in all countries of the region crises of access and delay are overtaking the courts.

 

But there have been changes for the good, as well. Albin Igličar notes that Slovenian law now expressly provides that judges exercise judicial power. This might not seem remarkable, but he points out that “[t]his emphasis on the judge as the executor of judicial power is important, because the legislation in the former Communist system focused on the court as an institution of political power, rather than on the role of the judge as an independent agent within the legal system” (p.180). Several countries have sought with varying success to institutionalize the separation of the judiciary and judicial self-adminstration from executive control and political influence, so much so that Marko Novak echoes a fear of “incest committed by lawyers” expressed by a Slovenian legal scholar (p.98). Adam Zielinski details the range of substantive laws which were rapidly changed in Poland, as soon as the Solidarity government assumed power. There is international influence, now compulsory, seeping into legal judgments. New institutions, unprecedented in the region, have sprung up all over the place, among them Ombudsmen and Constitutional Courts.

 

The latter have spurred a considerable literature. In this book, Gábor Halmai, examines in detail the powers and record in protecting fundamental rights of the Hungarian Constitutional Court, which in its first term was the most activist and powerful such court in the region and, arguably, in the world. He examines its relationship with both the ordinary courts, including the Supreme Court, and the Parliament, relationships full of tensions and ambiguities in all countries in the region, where the regular courts mix old and at times tainted holdovers with inexperienced neophytes and have low prestige, the Parliament and “political class” is despised, and the upstart Constitutional Court sees itself and is seen by supporters as a leading creator and not merely interpreter of a constitutional culture, where one had never existed. Halmai too stresses the degree of legal continuity characteristic of Hungary’s “refolution” (a term coined by Timothy Garton Ash to characterize the mixture of reform and revolution found in 1989). This continuity both contributes to the significance of the Court, and is subverted by the degree that this Court wields novel and wide-ranging functions and powers, and under [*293] its first President, László Sólyom, did so much that had not been done before nor elsewhere.

 

While that Court was much praised in Hungary and in the region, Wojciech Sadurski offers an iconoclastic, powerful but nuanced, critique of the prevailing enthusiasm for powerful constitutional courts in the region. The critique is informed by close knowledge of developments in the courts of the region as well as an easy familiarity with debates about the role of constitutional courts in Europe and the United States. Whether or not you agree with his conclusions, it is hard after reading him to rest easy with the local assumption that the legitimacy of strong and activist constitutional courts goes without saying and that the stronger the courts the better, particularly in the context of political transition, where democratic institutions are weak, and strong constitutional courts might (but then again might not) make them weaker. This chapter speaks not only to questions of legitimacy in post-communist countries, but indeed anywhere where the proper balance and interrelationships between majoritarian and expert, but in principle irresponsible, institutions are at issue.

 

One profound way in which the past remains present has to do with the multiple questions raised by attempts to “deal with the past.” Jiři Přibáň explores the complexity of issues of continuity and discontinuity between past and present, present, and future, in particular connection with the jurisprudential, moral, and practical dilemmas confronting regimes haunted by odious precursors, many of whose representatives are still around. Can one punish retrospectively while purporting to build a rule of law hostile to retrospectivity, or ignore past injustices in a polity supposedly committed to doing justice? Přibáň shows that those countries (Poland, Hungary) in whose public self-conception legal continuity was emphasized-and, it should be added, where recent experience of communism was relatively mild-have been reluctant to mobilize the law in judgment of the past; while those who regard discontinuity as primary (Czechia, Germany) have been happier to be harsher. He also shows that no one has simple answers to these problems. Though on moral grounds he favours “dealing with the past” by law, it is hard to show that, whatever course has been chosen, anyone has dealt particularly successfully with these dilemmas. Live dilemmas, because here too - as many complain bitterly of the enbourgeoisement of the nomenklatura and their opponents warn against Soviet-style imputations of collective guilt - the past isn’t even past.

 

Not every essay in the book is a success. In particular, a few pieces are rather longer on formal recitation of reforms “in books” than sociologically informed consideration of their significance “in action.” Too much Kelsen, not enough Ehrlich. One author is enamoured of the introduction of the toga into Slovenian judicial life, as a demonstration of “the dignity and seriousness of the judge’s role,” and he recites the full array of colours and placement of ribbons, insignias, chains, and scales of justice, not forgetting which colour is worn by which judge. Judges, we are informed, bear the onerous duty “to care for and maintain the proper appearance of his/her toga and judicial insignia.” [*294] Rightly so, it apears, for they “strengthen the presence of the courts and judges in society and are an external sign of judicial power” (pp.187-88). But such curiosities are exceptions.

 

Overall this is an extremely useful collection, which stresses the intangible constituents of a successful legal order, so easily forgotten by lawyers and legal institution builders. And there is something at the same time sobering and admirable in the observation, not of a distant and irresponsible cynic but of an engaged participant, that “[n]o doubt, the first hundred years of freedom or the journey on the road to freedom and to the introduction of a state, which may be called a ‘state of judicial independence,’ will be the most difficult” (p.157).

 

REFERENCES:

Ash, Timothy Garton. 1999. WE THE PEOPLE. London: Granta.

 

Gellner, Ernest. 1994. CONDITIONS OF LIBERTY: CIVIL SOCIETY AND ITS RIVALS. London: Hamish Hamilton.

 

Hobsbawm, Eric. 1994. THE AGE OF EXTREMES: THE SHORT TWENTIETH CENTURY, 1914-1991. London: Michael Joseph.

 

Karnoouh, Claude. 1996. “Postcommunisme/Communisme. Le Conflit des Interpretations.” Collegium Budapest, Discussion Paper No. 21, January 1996. http://www.colbud.hu/main/PubArchive/DP/DP21-Karnoouh.pdf

 

Krygier, Martin. 1999. “Traps For Young Players In Times Of Transition.” 8 EAST EUROPEAN CONSTITUTIONAL REVIEW 63-74.

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Copyright 2004 by the author, Martin Krygier