Handbook of Global Legal Policy

Stuart Nagel, Stuart Nagel

• Verlag: Routledge
• Jahr: 2022
• ISBN:
  9781000643558
• Auflage: 1
• Thema: Politik & Internationale Beziehungen
• Thema: Politik

Featuring a pragmatic approach to coping with the legal complications surrounding pretrial release, drug-related crime, and freedom of religion, among other issues, this timely reference presents a host of legal policy problems in diverse political and cultural settings throughout the world. Contributors bridge the academic gulf between worldwide and public policy studies, as well as the ideological gap between liberal and conservative attitudes toward constitutional law, individual liberty, public safety, and human rights. The authors emphasize the need for an integrated, "one-world" perspective in the international legal community, drawing on over 1200 references, tables, and illustrations.

9 New Times, a New Paradigm Mapping the Interactions of the Legal System, Judges, Lawyers, and Regime Changes in Post-Communist Europe

DOI: 10.4324/9780429272745-9

Carl F. Pinkele Ohio Wesleyan University, Delaware, Ohio

Communism was not put on the defensive nor did it collapse in East-Central Europe and the former Soviet Union owing to the actions of lawyers seeking to practice law without heavy state constraints; nor was the pursuit of justice or the rule of law behind the changes. Whatever has happened, is happening, and might well happen during the playing out of the respective transition of regimes will occur because of larger and smaller political economy matters than those principally associated with the professional and organized pursuits of lawyers or judges. Nevertheless, the law system and those who practice their profession within it as well as advocates, officials, judges, and private citizens quite conceivably will do much to shape both the near and the more distant future of post-communist Europe.

This chapter* is a speculative, heuristic, and comparative exercise aimed at the ambitious presentation of a new paradigm or map through which to more clearly focus upon the multiple roles of the law, especially civil law, judges, and lawyers within the changing and regimes-in-transition contexts of post-communist Europe. On the one hand, it will help illuminate the way to a more complete understanding of the events and changes that are so rapidly and confusingly taking place in East-Central Europe; on the other hand, it will yield a more complete picture of how the law system functions in a hyperpolitical environment such as that found in regimes-in-transition situations.

* An earlier draft of this essay was prepared for delivery at the 1991 International Political Science Association Meetings, Buenos Aires, Argentina, July, 1991.

Whatever has been going on in post-communist Europe at the outset, I do not believe that the changes in post-communist Europe were initiated because of some desire to purify, make legitimate, or construct a more efficient legal system. Rather, once begun, the broad political changes occurring in post-communist Europe have been interacting with the law and the law system. Consequently, those functioning within the legal system and the process itself are significantly influencing the present and future behaviors of other probably more crucial political actors. The process is an interactive one with significance for both the larger political world and the law system subarea. Furthermore, certain aspects of the law—in particular the emergence and development of civil or private law—and those legal system actors who are associated with its performance likely are important indicators of the direction and depth of broader systemic political economy changes. By making these important paradigm adjustments, much is revealed about the character and the future of the changes in post-communist Europe by paying close attention to developments in the law arena, particularly the civil law arena.

This chapter is divided into the following four parts: (1) an overview of the events and changes that led to the Soviet collapse and a post-communist Europe, (2) an examination of conventional wisdom and views—the normal paradigms—about the nature of the relationships between law and political economy regimes, especially those relating to authoritarian and totalitarian regimes, (3) the orientation of Soviet authoritarian law and its relationship to civil society and civil/private law, and (4) what a new paradigm can do toward assisting us in comprehending the changes in post-communist Europe and, more broadly, the ways in which law systems intersect with regime changes generally.

I. SOVIET COLLAPSE

From the late 1980s into the early 1990s, events in East-Central Europe and Russia outpaced analytical comprehension. Each day and week brought things one never could have anticipated happening into fuller view. The Warsaw Pact and COMECON became fixtures on the shelves of history rather than operating realities. The hegemony of the Soviet state collapsed quickly, and politicians from Gorbachev downward in position, both within the Soviet Union and across communist Europe, began rhetorical and practical political makeovers. Internally, the countries of East-Central Europe sought out their own ways, charted new futures, and began struggling for their own national political identities and political economic security. In 1999, NATO and the European Union were the dominant topics of conversation and design in what only 10 years earlier would have seemed to be a fairy tale.

What happened? What factors contributed to and who embarked on which course of policy making that resulted in changes of such gravity? It depends on which country or area is being studied. And, no single event, no particular plan, and no one individual isolated from the contexts of the past adequately account for the watershed events of the past decade. Nevertheless, some generalizations can be made with regard to both the spawning ground for the changes and the catalysts for them.

Insofar as the most general of circumstances across the European communist world are concerned, several key necessary conditions or precondition for significant change were in place for some time:

1. The party and state bureaucracies were old, ossified, and imaginatively sterile encumbrances to practical and efficient policy-making and policy-executing needs.
2. Corruption was widespread and rendered much official policy virtually dysfunctional and irrelevant.
3. Patron-client patronage politics and tribal loyalty and orientations frequently dominated policy-making questions and procedures to the point of all but devastating even the simplest notions of a public interest or common good.
4. Politics and government were, for the most part—especially in the Soviet Union and Czechoslovakia in slight contrast to the more vibrant opportunities in Hungary and Poland—imposed from above, and all the linkage mechanisms and institutions had virtually a veneer-like quality whose adhesion or linkages to society and the citizenry was based almost entirely upon coercion, overt mechanisms of control, and force, rather than upon legitimacy.
5. The East-Central Europe communist governments rested exclusively upon the shoulders of Soviet police muscle and military hegemony, almost to the extent of obliterating any reasonable pretense of even the smallest amount of symbolic mythological revolutionary justifications for the existing political economies and political elites.
6. The Cold War, with its military defense expenditure requirements was depriving the Soviet Union, in particular, of needed and extremely scarce resources.

On the last point, in an intriguing interview in late June 1991, “Reagan Revolution” guru David Stockman observed something similar to what Paul Kennedy and others had been observing from a longer-range historical comparative perspective: that a structural “scissors crisis” [my term] confronts empires and their policy makers—the military expenditures blade and the blade of social spending for welfare and other things (including debt servicing costs) catch policy makers in the middle. Stockman concluded that it was essentially good fortune for the United States that the Soviet blades caught its decision makers before their counterparts in the United States could cut too deeply into the U.S. political system. Indeed, if it was a race, then the U.S. won the Cold War because it did not get caught between the scissors blades first.

Beyond these necessary conditions and preconditions for change, or perhaps in addition to them, several sufficient conditions for broad-scope political economy alterations were present at the beginning of the 1980s. First, the “Afghan quagmire” had chewed upon the fabric of Soviet society much like its parallel the “Vietnam quagmire” had done to the United States a decade earlier. Second, the flowering of the European Community (EC) presented Soviet reformers with an escape valve from the direct Cold War competition with the United States. By working within Europe and with European interests; the Soviet Union could pursue the historic Russian goals of immersion within greater European political economic and strategic activities without having to either fight for it or surrender in a glaring fashion to achieve it. Third, the passing of the long and costly Brezhnev Era, the rapid fire deaths of Andropov and Chernenko, and the timely ascendancy of Mikhail Gorbachev allowed him to embark upon widereaching reforms summarized in the labels “glasnost” and “perestroika.”

Even though historical forces and factors surely facilitated the dramas and events of the 1990s, one cannot diminish Gorbachev’s role in fostering the watershed changes. Agnes Heller suggests that the end of communism, from her perspective, was set into motion by Gorbachev’s ending of the Leninist “democratic centralism” principle. As she puts it, “the end of modern communism began when it had became obvious that the totalitarian model does not work and that attempts to postpone its radical abandonment just make everything worse. ...” (Heller...