Legal Continuity Jiří Havel

The continuity of a legal system generally means that the law and the relationships established thereby continue in force despite other significant changes, such as the demise of a system of government and the advent of a new state. Thus, despite any such changes, the laws are still in force from the time they were passed, and will continue in force until they are revoked. Any contractual relations stand, unless they contravene legal norms. Only contractual parties may modify or dissolve them.

If, for example, the possibility were admitted of abolishing or introducing norms after the fact (retroactively), legal safeguards would be violated. If that occurred, the proprietorship or status of any other type of legal entity would no longer be clear. Similarly, it would not be clear whether agreements concluded in the past continue in effect and whether or not there should be any restitution or compensation for the benefits or fruits of any such retroactive modifications. There are, of course, certain minor infractions of legal continuity in the form of partially retroactive regulations; major, unconstitutional infractions, however, are more serious and such regulations should be overturned by a constitutional court.

The need for the continuity of a legal system is obvious. Thus when Czechoslovakia took the reins of power from the Austrian monarchy, there was a legal continuity which was mentioned on the very day of its establishment. In his first political speech on Wenceslas Square on October 28, 1918, the minister of railways, Isidor Zahradník, said as much, declaring that despite the declaration of the new state, all regulations would continue in effect and property would remain in the same hands. Subsequently, this was codified into law. Legal continuity was confirmed upon the formation of the Czech Republic in 1993 and expressed formally in the provisional constitution. Constitutional continuity was not complete in this case, however, as a portion of the constitutional laws in the new constitution had been formulated differently (there was a partial discontinuity).

Though lay people often criticize legal continuity out of a lack of understanding, their censure may sound justified: “How can we admit of any legal continuity whatsoever with the former regime, which we look down upon as corrupt and unacceptable in principle?” There is no answer to this question, however, from a legal standpoint. In Europe, there have been only two significant instances of discontinuity involving the entire legal system. The first is tied to the name of Lenin and the Bolshevik Revolution in Russia and the second with Tito’s postwar Yugoslavia—clearly not instances to be emulated.

According to the positive legal doctrine, for example, only behavior which might be criminal when it happened might be labeled a criminal act in the past. Criminal sanctions may not be applied to certain acts after the event. Suspending statutes of limitation after the fact in cases of serious crimes, for example, is arguable, but in the end may be acceptable if they were crimes according to the laws of the time which were nonetheless tolerated in the past in the interest of those in power. It is thus in the general interest to give the issue its proper legal dimensions, take legal steps, and make a verdict possible. The inverse of this approach is that, as a rule, only secondary transgressors—pawns, that is, and not those who instigated the crimes—are implicated.

In contrast with the above positive interpretation, the concept of natural law grants precedence to certain “natural” rights and concrete written laws. The concept of natural law has been revived following periods—such as Nazism or Stalinism—when law seems to have failed in a fundamental manner. There are those who object, however, that it is not easy to determine what such indisputable and “eternal” rights might be. In addition, the gravest crimes of Nazism or Stalinism always contravened the laws in force at the time. The criminal character of both regimes lay precisely in that they had overstepped the bounds of their own legal systems.

The continuity of the legal order as well as certain economic restrictions must be respected in the case of property restitution as well, for instance. Concretely, the clock cannot simply be turned back to the time when the original property was confiscated. That would mean compensating for lost revenues over the entire period, which, if done across the board, might seriously jeopardize the national economy and thus have serious consequences for the lives of individuals who had nothing to do with the injustice. It might, for example, also entail retroactively rescinding a long series of property transactions spanning decades and penalizing people who are innocent or acted in good faith. For this reason, restitution laws hold to the principle that only certain property-related wrongs may be addressed and claims of total compensation, which are de facto impossible, must be renounced. Statutory interpretations which emphasize the moral symbolism of this approach make reference to such reasoning.

Acknowledging the continuity of a legal system does not, of course, mean countenancing a moral continuity and thus accepting responsibility for or justifying past crimes. In fact, it is sometimes an effort to express moral condemnation in legal form. This may not have direct legal consequences; it is therefore contentious and can even be considered pointless from a legal standpoint. Nevertheless, such a declaration can have political significance and may express a social gesture of recognition toward groups that have suffered losses for which there might not be any proper compensation. Concrete formulations of such legal acts declaring moral discontinuity are often quite complicated and can elicit emotional discord.

“ … the regime based on a communist ideology which determined the government of the state and the fates of the citizens of Czechoslovakia from February 25, 1948, to November 17, 1989, was criminal, illegitimate and reprehensible.

All those who suffered injustice and were persecuted by this communist regime and did not participate in the events presented in Section 1, Paragraph 1 of this act deserves sympathy and moral compensation” (Act No. 198/1993 Coll.).