Vol. 9 No. 11 (November 1999) pp. 493-496.
THE RULE OF LAW AFTER COMMUNISM: PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE by Martin Krygier and Adam Czarnota (Editors). Brookfield, VT: Ashgate/Dartmouth Publishing Co., 1999. 344 pp. $87.95.
Reviewed by Daniel C. Kramer, Political Science-Economics-Philosophy Department, College of Staten Island CUNY.
This book is a collection of essays on topics related to constitution-making, constitutional interpretation, and
the birth of the rule of law in East-Central Europe since the collapse of communism there. After an introduction
by the editors summing up their colleagues' efforts, the distinguished sociologist of law Philip Selznick begins
the volume's Part I, "The Rule of Law", by giving his views on what this concept means. He feels that
it includes, but goes beyond, "a set of negative safeguards against the abuse of power"(p. 24). There
is a danger that the rule of law, if viewed solely in this light, will founder in a quagmire of mindless legalism
that can justify even slavery (p. 30). He asserts that it ought to include, as well, principles of genuine equality,
of acceptance of cultural diversity, and of ". . . respect for personal integrity and dignity"(p. 31).
Lech Morawski uses Poland as a springboard for discussing whether Kelsenian positivism is an adequate philosophical
basis for the rule of law in a modern nation that believes it has a responsibility to prevent the economy from
collapsing and its citizens from starving. He feels the answer must be in the negative. He assumes (perhaps incorrectly)
that the Kelsenian theory means that law enacted according to proper procedures must be obeyed under all circumstances,
and he goes on to say that the theory breaks down because it can produce disastrous results today, e.g., if a court
orders that a legally-mandated raise in bureaucrats' salaries be effectuated even though that would bankrupt the
polity (see p. 51). He does not introduce a full-fledged theory of natural law but simply concludes that extra-textual
rules such as those of justice and rationality should be allowed to override the written law in extreme cases (p.
52).
Antal Orkeny and Kim Lane Scheppele point out that in Hungary constitutionalism and the rule of law clearly prevail in the interrelationships of the various organs of government. They do stay within their constitutional powers and respect the decisions of the powerful Hungarian Constitutional Court, which by 1997 had invalidated over 200 laws enacted by Parliament, almost one of every three it had passed. However, the rule of law is less well established when it comes to interactions between the Hungarian state and its citizens. One problem here is that, although the Constitutional Court can examine statutes on their face to determine their constitutionality, it has no power to nullify concrete court decisions or administrative practices applying these statutes. This leaves room for arbitrary governmental decision-making, as when a lower court refused to register a gay rights group as an official organization (p. 66). Orkeny and Scheppele (as well as Selznick) feel rightly or wrongly that the rule of law also demands that the individual citizen
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respect the law and her/his fellow citizens; and they aver that in Hungary the rule of law on this level is an endangered species. Bribery and tax dodging are common while ordinary people feel little solidarity with their fellows, except for their friends; and so crime and fraud are rising. Martin Krygier attacks those who are too optimistic or too pessimistic about the continuance of the rule of law and democracy in Eastern Europe. The former group erroneously believes that as long as democratic institutions are in place, democracy will automatically prevail. The second group holds that the culture of a nation and region will ultimately determine the success or failure of the rule of law there and adds, moreover, that the consciousness of the residents of post-communist nations is not conducive to the maintenance of a free state. He feels that both sides exaggerate and concludes that it is at least possible that constitutionalism will prevail in Poland and its neighbors.
Part II contains essays dealing with aspects of the constitutions of the countries in the region. Peter Paczolay shows that the majority initially adopted parliamentary rather than presidential systems, though in some of these parliamentary democracies presidents have not-unsuccessfully struggled to enhance their powers (p. 123). Vilmos Sos describes some "hard" cases decided by the Hungarian Constitutional Court, including one declaring unconstitutional the requirement of a general identity card (pp. 139-40). Grazyna Skapska bemoans the delay in framing a new Polish constitution. She introduces the intriguing concept of "constitutional moment", a point in time when a new fundamental charter can easily be framed by political actors since they then have the support of the vast majority of the citizen body. Shedeclares that such moments existed in Poland in 1989 and 1993 but that the country "blew" them. The constitution that was finally adopted in 1997 was approved by only about 52% of the voters in a referendum in which only 42% of those eligible participated. In her eyes, this low level of support does not augur well for its future success. Wojciech Sadurski has qualms about that 1997 Polish Constitution, including its Article 31(3) that lists numerous grounds for limiting fundamental freedoms, e.g., "state security or public order, protection of the natural environment, health or public morals, and 'the freedoms and rights of other persons'. . . ."(p. 178) He is worried about the Constitution's imposing duties on citizens, and he thinks that its placing freedom of the press outside the chapter on rights and freedoms may lead the state organs to dilute this crucial prop of democracy. However, he is pleased that at the complaint of a citizen, the Constitutional Tribunal can strike down a law violating fundamental liberties.
Part III asks how the democratic states of Eastern Europe should deal with former communist collaborators. The question is relevant to a discussion of the rule of law in these nations because retroactive criminal legislation is needed to punish ex-communists. A preliminary chapter by Adam Czarnota and Piotr Hofmanski emphasizes the difficulties involved in quashing unjust criminal sentences handed out by the old regime and in granting pecuniary compensation to those arbitrarily treated by it. A law of 1991 allows the rehabilitation of and payment of damages to those who were "repressed for activity in aid of the independent existence of the Polish State. . ."(p. 202). However, if one robbed a food warehouse forty or so years ago, can a court really discover whether he or she committed this actof theft to feed anti-Soviet partisans or just to enrich
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himself or herself? Philosopher Andrzej Kaniowski argues on theoretical grounds against punishing or banishing from political life those who collaborated with the Polish communist state. Jirina Siklova is sceptical of the Czech Republic law, which provides for revealing the names of those current politicians and public officials who cooperated with the secret police of the Czech communist regime. She feels that the law employs the principle of collective guilt hurting, among others, those who became involved with the police simply through ignorance or momentary weakness. However she contends that the modus operandi of the secret police must beexposed (pp. 255-56).
Part IV is made up of two chapters on crime in the post-communist Eastern European world. Maria Los and Andrzej Zybertowicz describe the mechanisms the Polish Communist Party used to repress dissidents -- the informers, the infiltration of opposition groups, the beatings of suspected opponents of the regime, etc. They lament that a high percentage of those who had worked in the communist secret services were later employed by the democratic Polish government's Office for the Protection of the State. They are angry that so few of those who committed crimes in the name of communism have been punished; and that so many communist officials used the privatization of the economy as an opportunity to legalize the thefts of state resources of which they had been guilty while working in the command economy. They favor barring those high up in the communist regime and employees of the communist secret police from office, at least for a certain period. Susanne Karstedt then analyzes why crime has increased in most of the former Eastern European states, including East Germany. She notes that the disappearance of communist overregulation has created a situation in which there are now insufficient rules to help businesspeople and the public decide "what kind of gains from what kind of business are legitimate or not. . ."(p. 318).
Part V, "The International Dimension", has just one chapter. This short essay by Dencho Georgiev expresses the hope that the collapse of communism can result in the creation not of a world government, but in the development of a genuine rule of law for certain aspects of international relations. Such a rule of law would involve not only "international legal norms" but also "legal and institutional mechanisms for their enforcement, including sanctions in case of violations"(p. 340).
The Krygier and Czarnota book is certainly worth reading. Most of the essays are of high quality. I found extremely stimulating Selznick's discussion of the meaning of the rule of law; Morawski's treatment of the weaknesses of strict positivism as its basis; and Krygier's critique of those who look at institutions only or culture only to determine whether a nation is likely to remain democratic. I found especially informative the Orkeny and Scheppele and the Sos treatments of the Hungarian Constitutional Court; Sadurski's exegesis of the Bill of Rights in the new Polish Constitution; and the Los and Zybertowicz chapter complaining that many individuals associated with the former regime have prospered in democratic Poland. Paradoxically, I was convinced by Kaniowski's strong arguments against treating thoseindividuals harshly.
One major weakness of the book is the one-sidedness of its coverage. Granted that the definition of "East-Central Europe",
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the area it purports to study, is a fluid one, it is still unfortunate that six of its fourteen chapters deal with one country in the region, i.e., Poland. Hungary is the only other ex-communist polity adequately treated. The Czech Republic gets one chapter. Largely or completely ignored are Slovakia, Romania, Bulgaria, and Albania, to say nothing of the countries arising from the debris of Tito's Yugoslavia. It is surprising that almost nothing is said about the problem of minority ethnic groups in the region, the dilemma that at present poses the greatest threat to the continued supremacy of the rule of law there. All East European nations have such minorities. Sometimes they are unpopular, and a government looking to curry favor with the majority might well be tempted to violate the rule of law by taking repressive measures against the minority. (A Czech town has just erected a concrete wall to separate Gypsy and ethnic Czech neighborhoods!)
In many places, the prose is unnecessarily turgid, making the book somewhat unsuitable for undergraduate courses. It also presumes knowledge of East-Central European politics that most undergraduates are unlikely to possess. For example, the first two pages of the valuable Sos essay on the Hungarian Constitutional Court discuss the concept of "paradigm" in a confusing way: luckily this verbiage is ignored in the rest of the chapter. He also could have put more lucidly the result of the fourth case he describes (pp.145-46), where a conservative Prime Minister tried to fire the left-wing heads of state radio and television but the President refused to sign the letter of dismissal. The point not clearly made by Sos is that the Court dodged the issue of whether the President's refusal to sign was appropriate given the facts before him. Ultimately, the left-wingers resigned under pressure and were replaced by the Prime Minister's conservatives. (The conservative parties lost the next election anyway!) But despite my caveats, the Krygier and Czarnota volume is a welcome addition to the literatures on post-communist Europe and on human rights.