The Rule of Law in Central Europe

The Reconstruction of Legality, Constitutionalism and Civil Society in the Post-Communist Countries

Jiri Pribán, James Young

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9781138364257
• eBook ISBN: 9780429775994
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1999, this volume is a series of essays on the countries of Central Europe. The essays explore the post-1989 establishment of the rule of law and civil society. It brings together analysis and perceptions from social scientists, political scientists and lawyers, seeking through particular issues to explore the similarities and differences between different countries. While other books have explored the changes in former Soviet Block countries since 1989, the book's distinctiveness lies in three qualities: its concentration on Central Europe a concept explored in the book; giving fuller attention to the Czech Republic and Slovakia than other post-communist studies often do; providing perceptions of scholars from different disciplines.

1 Central Europe in Transition: An Introduction

JIŘÍ PŘIBÁŇ and JAMES YOUNG

“There’s no way around it; the rule of law is back.”¹

Introduction

This collection of papers explores the constitutional transition in Central Europe since 1989. The period of transition following the dramatic collapse of communism has breathed new life into the idea of the rule of law and the closely related concepts of constitutionalism, pluralism and civil society in the Czech Republic, Hungary, Poland and Slovakia since 1989. These papers are part of that debate and included, as a revealing comparison, is chapter on the Russian Constitutional Court.

The Concept of Central Europe

The term “Central Europe” is used, rather than Eastern Europe to emphasise that the four countries of the former Soviet Block have a shared political and cultural history which both distinguishes them from the countries of Eastern Europe and unites them. The territory of Central Europe is identified mainly with the dual monarchy of the Habsburgs, but also sometimes with at least some of the German lands. The area of the monarchy was dominated by a German-speaking culture, but was ethnically diverse. The economic conditions and political status of the nations inhabiting the territory differed radically. Only Austrian-Germans and Hungarians realised their political ambitions and occupied positions of political power at the expense of other ethnic groups, mainly Slav nations within the region.

The use of the term Central Europe should not be turned into romantic nostalgia for a non-existent ideal past. The Habsburg monarchy was full of modern economic and industrial tensions and nationalist political tensions. Indeed Central Europe is typified by a diversity and plurality of national cultures and histories.² Central Europe is thus a concept born of this political history which also finds an aesthetic and cultural expression in the work of such artists and thinkers as Klimt and Kafka, Musil and Mahler, Hagek and von Hayek, Schiele and Szymanowski, Bruckner and Bartok, Freud. During the post-war communist domination of the region, the idea of Central Europe was submerged, at least politically, in the simple opposition of East and West.

1989 transformed this. There can be no doubt about the historical and political importance of the year in which the main political, geographical and strategic borders between the Soviet East and the liberal democratic west disappeared. The Soviet Union ceased to be the dominating military, economic, cultural and ideological power to the east. Some of the hopes for the dawn of a New World Order of co-operation and mutual trust espoused by politicians proved unrealistically optimistic. The talk of the end of history in an age of globalisation was premature and unrealistic. However, the destruction of the Soviet union revived the popularity of the term “Central Europe”. From the political viewpoint of Western Europe, two clubs were formed out of those European states emerging from the dominance of the Soviet Union – those regarded as early candidates for membership of NATO and the European Union and those who, even if they aspired to membership, would not qualify in “the first wave”. Those countries in the first wave were primarily defined by belonging to the historic territory of Central Europe. The demotion of Slovakia from this club may seem to gainsay this, but this is to a considerable extent a product of the Slovaks history within Central Europe.

We have preferred the term Central Europe to refer to the Czech and Slovak Republics, Hungary and Poland. “Central Europe” seems less cumbersome and in this context evidently refers to that part of the historic Central Europe which, with East Germany, had the distinctive characteristics of being satellites of, but not absorbed into, the Soviet Union. This is not to ignore the historical value of the concept of “East Central Europe”. Over a longer span of European history there is evidently a strong argument for dividing up West Central and East Central Europe and this latter term has become common among historians to describe the land now comprising the Czech Republic, Slovakia, Hungary and Poland.³ In the contemporary context Austria and East Germany have become assimilated in ordinary usage into the West, while these four states are seen as a distinct part of Europe, since while they may “look west” culturally and in more recent history, their distinctive history owes much to their borders with what is unequivocally the eastern part of Europe. In the second half of the twentieth century they share an emergence from satellite statehood since 1989, a transformation which in legal and constitutional terms is different from those of nations achieving statehood, or of East Germany being re-united with the Federal Republic within the Federal Republic’s constitutional and legal framework.

Political Sovereignty and Nation States

One of the most obvious characteristics of post-1989 Central Europe is the renewal of the political independence and international sovereignty of each nation state. Nation states in Central Europe emerged relatively late in modern European history, after the collapse of the Austro-Hungarian Monarchy in 1918. The inter-war period was troubled and not straightforward and countries like Poland, Hungary or Austria were threatened by the politics of authoritarian nationalist, populist and autocratic regimes. The only exception was Czechoslovakia which, was nevertheless confronted with national conflicts between Czechs and Germans, and which also faced ever-increasing Slovak self-confidence and political demands for Slovakian autonomy. The achievement of political sovereignty by Czechs, Hungarians, Poles and Austrians, after 1918, was bound to usher in a complicated period, but was in any event all too brief. In spite of some shared history and common features, the concept of Central Europe does not have a single political and constitutional significance, since, between the two world wars, each of the countries developed in its own way with differing internal political dynamics. While they shared some common cultural features and history, there were some fundamental political differences between them.⁴

Before the second World War Czechoslovakia had a brief history as an independent state.⁵ It was the only one to have been a western-style democracy with a liberal constitution from the end of the First World War until the German invasion. The Czechs and Slovaks were brought together as one State, if not one nation, in the dismemberment of the Austro-Hungarian Empire after the First World War. Forging a single state for the Czechs and the Slovaks was never without its opponents, especially among Slovaks. The democratic state of Czechoslovakia initially steered by the commanding presence of Tomd§ Masaryk and then by Eduard Bene§ existed effectively until the German invasion in 1938, as France and Britain washed their hands of their ally. During the War, Slovakia was set up as a puppet State of Germany, while the Czech Lands were under direct German occupation and rule. Following the War, the Government in exile returned under the presidency of Bene § with the one state of Czechoslovakia reunited under the pre-war constitution, until in 1948 the Communists seized power.

In Poland the history of democratic constitutional government was different again. Threatened from its rebirth by war with Soviet Russia, the democratic constitution established in 1921 was overthrown by General Pilsudski in 1926. In Poland too nationalism brought its tensions, making the position of non-Polish minorities uncomfortable. Under the “Sanajca Regime” independence and nationalism expressed through the consolidation of an independent Polish state had priority over democracy and the strict adherence to principles of legality. Pilsudski’s death did not lead to the restoration of democracy and the Second Republic was strangled by Nazi invasion in 1939. The brief restoration of the 1921 Constitution after the second World War soon gave way to communist rule and subordination to Moscow.⁶

Hungary was of course a different case since under the dual monarchy its nationhood had been recognised. Whereas the inter-war period was a period of opportunity for the new states of Czechoslovakia and Poland, for Hungary, as for Austria, it was a period in which the nation found its international status diminished. Moreover, its nationality problem was as much that of the many Hungarians left living outside its borders after the peace settlement as it was non-Hungarians living within the new boundaries. For a brief period, a repressive soviet regime was established. This was violently overthrown in 1919 and in 1920 Horthy became regent, remaining head of state for twenty four years. From a constitutional viewpoint this period left little legacy for re-building after 1989. Participation in politics was confined to a small property-owning elite and the government was authoritarian. During the Second World War successive governments tried to coexist with all sides in the conflict. However, as war progressed Hungary became more closely associated with Germany and towards the end of the war Jews in Hungary were persecuted and murdered.⁷

After the war, instead of Central European diversity and plurality, Stalinist Russia set up and controlled the region, usually then referred to as Eastern Europe. Together with countries like the German Democratic Republic, Czechoslovakia, Hungary and Poland, it included the Balkan states (with the exception of Yugoslavia, Greece and later Albania) and the Baltic states occupied by the Soviet Union from the beginning of the Second World War. The concept of Eastern Europe was a political concept, deriving its meaning purely from the fact of Soviet occupation and the domination of communist ideology in the region from 1945 to 1989. Soon after Stalin’s death in 1953, it became evident that the countries under Soviet domination, and especially those in Central Europe, aspired to autonomous policies.⁸

Post-1989 Constitutional Reconstruction

With the collapse of the communist regimes, new-born democracies and political elites in Central Europe had to formulate new political goals. The political ideals and principles of western liberal regimes have been adopted and, in spite of some political traditionalism and nationalist conservatism supported by some political parties in each country, have become a part of everyday political life in Hungary, Poland and the Czech Republic. In Slovakia these political goals have yet to be achieved in the political struggle. Even traditionalist and nationalist politicians have, with the exception of some extremists, emphasised their interest in reconstructing the rule of law, the principles of a civil society and the protection of human rights. The main political goals to be achieved by the process of transition can be summarised as follows: the rule of law (Rechtsstaat) and constitutionalism, human rights protection, market economy reforms, integration with NATO and the EU, and the principles of civil society and individual autonomy

Very soon after the re-establishment of national sovereignty the political rhetoric in Central Europe included the need for integration with European Union structures. All the countries of the region looked for the constitutional and legal expression of their intentions to be tied to and bound by existing European and international institutions.⁹ From what has been said, it seems important to point to this double process of the renewal of national sovereignty and independence going hand-in-hand with integration into the EU and NATO.

One of the main political tasks in Poland, Czechoslovakia and Hungary was the adoption of new constitutions expressing and codifying liberal and democratic values. This struggle for new constitutions must be understood in the context of the symbolic value of constitutions and their cultural and integrative functions. Constitutions codify the system of authority in society and help to give it legal legitimacy, but they also “construct” communities.’¹⁰ This collection of essays points to the symbolic importance of the new constitutional order and the values enshrined within them_ the rule of law, entrenched protection for human rights, the underlying idea of constitutionalism.

One of the most striking legal facts in post-1989 legal and constitutional development was, however, the continuing existence of socialist constitutions. New legislators only abolished provisions constituting the system of one party rule and the communist regime, and supplementing old texts with new democratic and liberal provisions.¹¹ New Czech and Slovak Constitutions replacing the amended communist constitutions were drafted much more rapidly than in other countries, coming into force when the separation took effect in 1993. The situation in Slovakia was singular in these terms, because the split of Czechoslovakia and the establishment of an independent Slovak state required the “construction” of new nation state – probably the last nation state to be created in the region. In Hungary the new constitution took, and still takes, the legal form of amendments to the 1949 Constitution rather than reviving the 1946 Constitution or creating a new one. In Poland, the existing socialist constitution was retained amended. In addition an important constitutional law redefined the relations between legislature and executive and became commonly known as the “Little Constitution”. In Poland after protracted parliamentary deliberations it was not until 1997 that a completely new Constitution was put to a popular vote....

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• 1 Central Europe in Transition: An Introduction
• Part I: The Czech Republic
• Part II: Slovakia
• Part III: Hungary
• Part IV: Poland
• Part V: Russia