Vol. 10 No. 2 (February 2000) pp. 137-140.

THE RULE OF LAW IN CENTRAL EUROPE: THE RECONSTRUCTION OF LEGALITY, CONSTITUTIONALISM AND CIVIL SOCIETY IN THE POST-COMMUNIST COUNTRIES by Jiri Priban and James Young (Editors). Brookfield, VT: Ashgate Publishing Co., 1999. 286pp. Cloth. $87.95.

Reviewed by William Kitchin, Department of Political Science, Loyola College, Maryland

This book is a much-needed introduction to the building of law-based states in Central Europe. Though the book is selective as to which nations are actually covered (Czech Republic, Slovakia, Hungary, Poland, and Russia), it does give the reader an adequate introduction to the general topic and implicitly highlights the uneven rates at which the rule of law is taking hold in Central Europe.

Almost one-third of this book focuses on the Czech Republic. Four scholars provide interesting and informed descriptions of the Czech Republic's experiences in establishing a law-based state in the aftermath of Communism. Dusan Hendrych gives us a serviceable introduction to Czech constitutionalism. This chapter is well positioned before the three more specific chapters on the "Velvet Revolution," lustration, and the Czech Republic's Constitutional Court.

Jiri Priban provides a useful rendering of the Velvet Revolution of 1989 as more than just a shedding of Communism. It was an attempt to establish a notion of "The People" as sovereign and to create a basis for eliminating the "lies" of Communism. The uniting higher law mentality of the dissident movement, the driving energy behind the Velvet Revolution, was liberal and democratic and provided a solid conceptual basis for the establishment of the rule of law in the Czech Republic. Priban's discussion is informed and informative.

Mark Gillis's chapter on the lustration law of the Czech Republic is a concise introduction to this subject and a defense of lustration. A lustration law is a statutory exclusion of former Communist decision-makers from certain positions in the democratizing state. The law defines who is excluded and from what types of positions. The exclusion in the Czech Republic is automatic, that is, there are no individualized due process type hearings. The conceptual justification of lustration was given by the Czech Constitutional Court as the affirmative obligation of a democratic state to defend its principles. Lustration is a defense against those who in the past
devoted their lives and energies to anti-democratic and anti-human rights policies.

Vladimir Sladecek gives a brief and somewhat conclusory description of the Constitutional Court of the Czech Republic. Given that the Court has a prominent statutory duty to defend fundamental rights in the Czech Republic, the brief discussion of the Court's actual decisions was not as informative as one would hope. A more complete discussion of the CONCEPTS promulgated by the Court would have been very useful.


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Two chapters deal with Slovakia. Miroslav Kusy's chapter is entitled, "Does the Rule of Law (Rechtsstaat) Exist in Slovakia?" To my reading, Kusy does not answer the question. He provides a convincing argument that, IF the rule of law exists in Slovakia, its existence is fragile. Nevertheless, at one place, the author refers to the broad and deep foundation of democracy and asserts that as a consequence of the foundation is that undemocratic and arbitrary decisions by Slovak leaders and the weakness of the political elite in Slovakia do not undermine democracy in that country. One must wonder whether democracy does run either deeply or broadly in a country that has no recent democratic tradition or experience. If the rule of law requires a cultural or attitudinal basis, one might expect Slovakia to look increasingly like Russia and less like the Czech Republic.

The excellent chapter by Sona Szomolanyi details the sad state of Slovakia's political elite. The elite has VERY little consensus over fundamental political values other than its own xenophobia and quick willingness to sacrifice democratic principles. Moreover, the controlling elite has drastically restricted access to policy-making arenas. The competing elites in Slovakia do not compete in terms of programs and policies. Instead, their competition seems purely motivated by the thirst for power and the fear of others' having power. Thus, Szomolanyi in effect answers the "does the rule of law exist in Slovakia" question. The answer is
not yet.

Two chapters are devoted to Hungary. Istvan Pogany's historical chronicle of anti-Jewish and anti-Gypsy sentiments in Hungary highlight: (1) Jewish skepticism about the creation of the rule of law in Hungary, and (2) Gypsy feelings that whether Hungary is a law-governed state is irrelevant to their lives. This chapter is quite specialized and as such does not inform the reader about the overall state of the rule of law concept in Hungary.

Andras Sajo gives a superb account of how the Hungarian Constitutional Court by arbitrary and improvised decisions concerning welfare rights has implicitly undermined the concept of rule of law. The Hungarian court struck down welfare legislation passed by the Hungarian Parliament and substituted its own concept of vested, material welfare rights such as sick-leave compensation and pensions. The Court in effect imported from the Communist era the entitlement mentality that "the state must feed us." Sajo's detailed discussion portrays a court that has embraced the majority's desire and expectations of being fed, but the Court has given no coherent doctrine to support its policy or its power to nullify legislation that is facially constitutional. This Court may very well be demonstrating the destabilizing
effects of an overly activist judiciary.

In the first of four chapters on Poland, Jacek Kurczewski provides two items of sociological data that demonstrate the "softness" of Poland's newly established rule of law. First, only 42 percent of the public turned out to vote on the new Constitution in the 1997 nationwide referendum. Though the Constitution was approved by a 53 percent to 46 percent margin, 53 percent of the 42 percent turnout is only 22 percent of the Polish public still involved enough in national politics to endorse the new direction for Poland. The second item is that in 1996, 42 percent said that one should ALWAYS obey the law, even an unjust law. This compares to 45 percent in 1964. The authorposits this as a "test" of the rule of law in the public culture, although I imagine John Locke and Martin

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Luther King, among others who endorsed the idea of a law-governed state, would be unable to give a simple "yes" or "no" to Kurczewski's test. Indeed the test is probably not valid because the phrasing used the word "always." Nevertheless, Kurczewski's chapter, obscure at times, seems to conclude that rule of law in Poland - as everywhere - is a work in progress. He believes that if pluralism can begin to flourish in Poland, then the rule of law will have a much-needed economic base on which to stand.

Grazyna Skapska develops the concept of the "post-classical constitution". This idea holds out international covenants as repositories of rights and rights-related doctrines for those post-Communist systems that do not have their own independent concepts. Skapska's chapter covers other aspects of Polish constitutionalism, but the reliance on international rights documents is common to many if not all former-Communist states in Central Europe.

A chapter by Malgorzata Fuszara covers women's rights in Poland but the linkage to the rule of law was lost on this reader. The chapter sets forth a number of areas where gender discrimination clearly exists, but that does not necessarily mean that rule of law is imperiled in Poland.

Agata Fijalkowski's short chapter on Polish judicial independence identifies five barriers to judicial independence: (1) legislative passivity on the subject; (2) judicial inexperience; (3) use of extralegal practices to accomplish ends which the formal law should accomplish; (4) the continuation in judicial office of many judges from the Communist era, and (5) calls for more "judge-made law." To this reviewer, this sounds like a recipe for pessimism, and this solid chapter generated a number of questions and concerns about the eventual fate of the rule of law concept in Central Europe.

The book's concluding chapter is Bill Bowring's treatment of the Russian Constitutional Court. The chapter is an accessible survey that an introductory reader will find useful. The chapter would have been even stronger had the authors discussed the actions of the Court since 1996.

The book as a whole has four major strengths. First, better than any other book of which I am aware, it gives the reader a solid introduction to the development of the rule of law in Central Europe. Second, although not comparative, the book does assemble in one place a number of sources and references that are useful to the scholar pursuing research on the rule of law. Third, the book is broad rather than deep and will, therefore, be of more use to scholars and students on the periphery of the topic as opposed to scholars with a developed research interest in the rule of law or comparative constitutionalism. Fourth, the introductory chapter by the editors, though short, is solid and substantive. The major drawback to the book is that it is primarily historical and descriptive, especially those chapters written by
lawyers. The contributions of the social scientists offer a little more in the way of analysis, but even those chapters are largely non-analytic.

Nevertheless, the book's strengths predominate and make it a welcome addition on a subject that receives a surprisingly small amount of scholarly attention outside of Central Europe. The book should be most useful for graduate political science courses in comparative judicial processes and would be good for similar law school courses though I have noticed that law school courses tend to avoid books without

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black letter law. The overall absence of black letter law is one of the strengths of this book.


Copyright 2000 by the author.