Vol. 10 No. 12 (December 2000) pp. 630-632.

THE STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST-COMMUNIST EUROPE by Herman Schwartz. Chicago: The University of Chicago Press, 2000. 348 pp. Cloth $47.50. ISBN 0-226-74195-8.

Reviewed by James L. Gibson, Department of Political Science, Washington University in St. Louis.

Those who are interested in understanding the behavior of constitutional courts in transitional regimes cannot afford to ignore this important book by Herman Schwartz. Professor Schwartz has given us an extremely detailed and most intriguing accounting of the role of the constitutional courts in the political transformations of Poland, Hungary, Russia, Bulgaria, and Slovakia. Professor Schwartz's analysis is carefully detailed and well documented, comprehensive, informed by theory, and just simply fascinating. Students of comparative politics will find this book an invaluable contribution to any effort to understand the role of judicial institutions in processes of political change.

Professor Schwartz analyzes these courts along a series of common dimensions. First, he considers their formal structures and powers, focusing on the period of the creation of these institutions. Considerable attention is devoted to the politics of creating these courts (e.g., how to deal with the institutions and personnel from the Communist pasts in these countries), and the stories told are often filled with machinations and intrigue. Students of institutional design and creation will find this material extremely useful and provocative. They should value Professor Schwartz's insights into the strategies employed in trying to design effective judicial institutions.

Second, Professor Schwartz examines the doctrines these courts have enunciated. He makes a serious effort to compare the jurisprudence of the institutions, as for instance in the way in which the courts have dealt with the political pasts in these countries. Professor Schwartz strikes a useful balance between presenting too much minutia on the constitutional litigation and the associated legal doctrine within each of the countries and glib characterizations of the policy making of these courts. In each of the country chapters he examines topics such as the allocation (vertical and horizontal) of political power across the emerging institutions of these new democracies, the protection of human rights (including the use of libel laws to protect politicians from criticism), ways of dealing with the past (as in property rights and issues such as lustration), and efforts to promote the rule of law (including conflict within the judiciary over judicial hierarchy and supremacy). Those interested in the substantive constitutional policies of these institutions will find much of interest in each of the country chapters.

Finally, Professor Schwartz's analysis is always political -- in the sense that he is concerned about the role these institutions play within the political system. In particular, he analyzes the capacity of these courts to be effective, to get their decisions respected and implemented, and,

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concomitantly, the ability of these courts to protect themselves from debilitating attacks. This is some of the most interesting analysis in the book, especially for those who are accustomed to seeing their own courts respected and to having judicial decisions faithfully implemented (as in the United States, except in Florida).

According to Professor Schwartz, the constitutional courts of Central and Eastern Europe are all facing similar problems. The issue central to his investigation has to do with the development of institutional legitimacy and efficacy. The most salient fact of these courts is that they are new, they have little "reservoir of goodwill," they face powerful political opponents (typically executives, but occasionally parliaments) who often place political expediency above the rule of law, and they are uncertain of their own political strengths. For instance, the bitter and prolonged struggles between the Constitutional Court and the government in Bulgaria demonstrate just how precarious judicial power can be. The "book" is still out on many of these courts; whether they will evolve into legitimate institutions capable of policing the new political system remains to be seen.

Professor Schwartz is a law professor and his proposed solutions for the legitimacy challenges faced by these courts reflect his legal training. For instance, he places strong emphasis on the need for courts to clearly justify their decisions through careful, and non-political, legal analysis. He is especially scornful of judges who attempt to enter the fray (e.g., through speaking publicly about current or future cases or constitutional issues), or even attempting to communicate with the various constituencies of the courts outside the mode of formal legal opinions. It is certainly true that the norms of judicial insulation from politics that seem to be so strong in the United States are not entrenched in many of these countries. Professor Schwartz's concern with judicial impartiality and independence as necessary ingredients for judicial legitimacy is central too much if not most of his analysis.

A second overriding concern of Professor Schwartz 's analysis is with judicial power, and especially the power of courts to bring about democratic transformations. Some of the courts studied seem to have been extremely powerful - for instance, in the period from January 1, 1990, to June 30, 1994, the Polish Constitutional Court reviewed 52 statutes, finding 40 of them unconstitutional (p. 56)! However, Professor Schwartz is no optimist; instead, he has an extremely realistic view of the limits of courts, as for instance in his conclusion that: " .... while a constitutional court cannot ultimately prevent a determined and powerful authoritarian regime . . . it can put a finger in the dike to gain time and put some pressure on a weaker style of authoritarianism. But that is probably all it can do" (p. 227).

For students of American and Western Europe Courts, it is fascinating to note how even the fundamental existence of constitutional courts may be at risk: "... some authoritarian leaders have responded with more than defiance of specific orders. Belarussian President Alexander Lukashenka first ignored the Belarussian Constitutional Court's rulings and then forced its independent members to resign; President Nursultan Nazarbayev of Kazakhstan simply abolished the constitutional court in his country; President Boris Yeltsin suspended the Russian Court" (p . 238). Professor Schwartz's analysis is a refreshing reminder that the stability of judicial institutions cannot be taken for

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granted. Despite all the analysis of institutional creation that is currently popular in political science, we still know little about the causes of institutional deterioration and demise.

Political scientists will find much of interest in this book. Professor Schwartz does not always ground his analysis in explicit theories. Hypotheses are not always deduced or even formally stated, and Professor Schwartz is not shy about expressing and imposing a series of his own normative commitments on these courts. Moreover, he occasionally relies on the formal rather than actual powers of institutions, despite the fact that studying WHAT COURTS ACTUALLY DO is far more interesting to political scientists than analyzing what courts may be formally empowered to do. However, there is a wealth of descriptive and analytical information in this book that no scholar of courts should ignore. Moreover, a host of questions that have long concerned political scientists are implicitly addressed in this book. For instance, do, and how do, courts serve as veto players within political systems? Are courts inevitably biased toward protecting the "upper dogs" in society, rarely seriously challenging the dominant ruling coalition? Are courts limited in their ability to actually influence society, as Gerald Rosenberg argues in the case of the United States? How do courts acquire legitimacy; how does law get differentiated from politics in the minds of ordinary citizens? This book is fecund with hypotheses of interest to political scientists, and we are indebted to Professor Schwartz for his comprehensive analysis of the role of these courts in the political transitions of the states of Central and Eastern Europe.