The Postcommunist Constitutional Judiciary and the Definition of Legitimate Politics and Rights Jiří Přibáň
I / Legalistic Revolutions?
The anticommunist revolutions of 1989 dismantled the modern fiction of the sovereignty of the people, yet the revolutions and the new regimes could not dispense with democratic legitimacy. The people ceased to be the historic embodiment of a single political will and became a mere label for the politics of diversity, pluralization and individual and group rights and freedoms. This politics has a much more profound existential context. As a result, one cannot name a single strategy or vocabulary that would function as a supreme legitimizing framework for the revolutions.
From the perspective of strategies of legitimation, the revolutions were heterogeneous. This is true in spite of the second fundamental feature that they shared: a vocabulary of individual and group human rights and freedoms which developed against the backdrop of a legalistic approach to the legal state and constitutional protection of these rights and freedoms. The fundamental, although not exclusive, legitimizing framework of the revolutionary changes consisted of the legalistic legitimation of human rights and freedoms and the democratic legal state.
The ethics of legalism, as it is defined by contemporary legal positivism, finds its concrete form in this legalistic conception of revolution. In the course of these political changes, the principle of the legal state, which all of the anticommunist revolutions proclaimed, originally had a powerful ethical significance. It was regarded as a political virtue and a revolutionary value that had to be defended. In the process of postcommunist transformation, the ethics of legalism and its fiction of the right law had persuasive force as an instrument of legitimation. In many respects, this force even surpassed and operated independently of democratic legitimation.
The legalistic legitimizing framework, which includes a typical reference to the principle of the legal state, is particularly manifest in the example of two countries in which the revolutionary changes began and gradually took shape during round-table negotiations. In Poland and Hungary, the communist government and the opposition agreed on gradual changes that required the establishment of rules and procedures for this process. The fiction of a legal revolution was established—a revolution that was limited by the existing communist constitutional and legal system. Its main aim, however, was the dissolution of this system and the creation of a classical liberal-democratic legal state. The Hungarian communists played an important role in the creation of this fiction. At a conference in the middle of 1989, the Hungarian minister of justice and legal theorist Kálmán Kulcsár defined the three key words of Hungarian political reform thus: the legal state, constitutionality, and human rights.1
It was because of the legalistic approach to revolutionary changes that the communist constitution of 1948 later remained in effect in Hungary. All that changed was that the laws that defined the principles of communist power were reformed and articles regulating the protection of traditional civic rights and the principles of the democratic legal state were added. The legitimation of the old constitution for the new political circumstances was like an attempt “to square the circle.”2
The principle of the legal state and the legal legitimacy of the political power that it embodied had yet to take shape, but when the communists negotiated with the opposition at the round table they acted as if the legal state already existed.
This fiction had a concrete impact on the new liberal-democratic legal and political system. For example, the legalistic strategy of the revolution made it impossible to settle scores radically with the communist past. In this connection, the Hungarian constitutional court decided that the Zétényi-Takács Law of 1992, under which certain crimes of communism might have been prosecuted, was unconstitutional. The court revoked the law, arguing that it would have sanctioned legal retroactivity and thus the violation of the constitutive principle of the legal state, the principle of legal certainty.3
Likewise, in Poland the legalistic conception of the revolution was definitive. The 1952 constitution remained in effect and was gradually altered to suit the new political and legal conditions.4 The revolution set limits for itself because of the principle of the legal state. A “democratic revolution” was one that submitted to a rigorous legal framework, one that did not sanction such arbitrariness as retroactive laws or the rejection of legal continuity.5 In 1991 the Polish constitutional tribunal did not reject in principle the possibility of deviating from the principle of lex retro non agit in punishing the political crimes of Stalinism. This, however, was an exceptional provision and the definition of the conditions for such a situation had to be absolutely precise legally.6
Even in those countries where round-table discussions were not a prearranged process of change with a firm procedural framework but rather a result of revolutionary activity in the streets, the legalistic strategy of legitimation and the related principle of the legal state were evident from the very beginning of the revolutionary changes. In Czechoslovakia, one of the first revolutionary demands was that those articles that guaranteed the leading role and government of one party be dropped from the constitution. As early as December 1989 Občanské fórum (Czech: “Civic Forum”) came up with its own design of a new democratic constitution for the entire federation. The primary but unfortunately one of the few successful tasks of the entire constitutional transformation of the Czechoslovak federation was the passing of the Document of Fundamental Rights and Freedoms.7
The subjects of retroactivity in postrevolutionary law, the principle of the legal state and the relationship between legality and legitimacy also had a fundamental impact on legal and political discussions and on legislation in the postcommunist countries in the early 1990s. In Czechoslovakia and later in the Czech Republic debate over the legitimacy of the communist regime and its laws played a particularly important role and influenced, for example, the so-called “lustration” legislation. These screening laws banned party officials and members of the communist police and armed forces from holding certain administrative functions. The debates also had an impact on the passing of other important laws after 1989, for example, the law concerning property restitution.
How can one criticize and condemn the former totalitarian regime in the language of law and legality? It did, after all, have its own constitution, legislation, laws, and courts. Was it thus a legal state? If so, does this mean that any kind of tyranny can be legal? And if it was not a legal state, why is it that the new liberal-democratic regime adopted so many of its laws? These are questions that determined the political vocabulary of postcommunist societies in the first postrevolutionary phase.
The question of whether the communist regime was legal or legitimate was such a frequent subject of public discussion that it was even parodied in one of the plays performed at the National Theater in Prague.8 It is clear that the theoretical and practical significance of the relationship between legitimacy and legality becomes more pressing at a time of sudden political change and complex reconstruction of legal systems. It is against this background of change in Eastern Europe after 1989 that one can reevaluate and reformulate the question of the legitimacy of law and political authority as such.
It hardly needs to be pointed out that although some communist constitutional and legal statutes were carried over into the new political circumstances, there was a fundamental difference between the principle of socialist law and order and the legal state in the classical liberal-democratic sense. For example, the continuity of the above-mentioned Hungarian constitution from 1948 was entirely formal because most of its original articles were fundamentally changed over the course of 1989 and 1990.9 In the last decade the Polish constitution of 1952 was also fundamentally altered; thus, the comprehensively rewritten version from 1997 has little in common with the original text. In Czechoslovakia after 1989, only the articles concerning the leading role of the communist party were dropped from the federal constitution. The constitutional structure of the federation lived on and gradually brought the country to an unsolvable political crisis. In the end, this led to the disintegration of the joint state.
When one considers the arbitrary foundation of socialist legality and the constant threat of party intervention in the legal process, it is hardly surprising that from the very beginning the legal state and the rule of law were among the most important revolutionary demands in those countries that experienced a sudden and rapid revolutionary change instead of round-table negotiations. In the former Czechoslovakia and the GDR, revolutionary vocabulary went hand in hand with legal positivist vocabulary, calling for the rediscovery of the principles of legality, due legal process and laws that were universally binding and above party politics.
Legal positivism and the formal legal approach carried with them a strongly critical subtext. Such characteristics of law as regularity, predictability, certainty, permanence, and unity, which legal positivists refer to as the ethics of legalism, truly appeared to be important values that protected individual autonomy and security.10 These characteristics also offered effective instruments for criticizing a political regime that was capable of subordinating court decisions to the political circumstances of the moment and that ruled according to the secret directives of the central committee of the party, rather than according to parliamentary regulations.
The famous dictum of legal positivism—“justice according to the law”—could have a strongly critical and reconstructive significance when confronted with communist political power, which relied on “quasi-natural law” arguments and schemes. Indeed, the arbitrary, repressive, and discriminatory nature of this power was often justified ideologically with reference to the principle of the historical role of the working class, which was supposed to do away with economic exploitation and establish the highest historical and social justice. The communist system also defended itself by appealing to the principle of subordinating the power of the courts to the “objective” interests of the socialist regime, as formulated by the communist party or rather by its central committee and the repressive bodies of the secret police.11 In this respect, “class background” was a key term. The important socialist legal theorist Viktor Knapp, for example, considered it to be a brilliant discovery of legal scholarship in his day.12
In contrast with this arbitrary socialist law and order, supported by propaganda advocating the natural or quasi-natural right of a certain social class, the liberal conception of human rights, civic freedoms and a democratic legal state was a powerful political demand. It was to be met through revolutionary change and the subsequent social, institutional, and legal transformation.
The immediate outcome of this legalistic strategy and call for the establishment of a legal state was the endorsement of constitutional documents such as the Document of Fundamental Rights and Freedoms. Also as a result of this strategy, the Czech legal and constitutional order was closely connected with international treaties on human rights and fundamental freedoms, as stipulated in Article 10 of the constitution of the Czech Republic.
Together with human rights and freedoms, it was necessary to express legally the principle of the political sovereignty of the people in a new legitimate manner, distinct from that of communist constitutional documents. In its second article, the constitution of the Czech Republic refers to the principle of the sovereignty of the people. This article, however, has to be read very carefully in the context of the preamble to the constitution, which refers in its first words to a strict civic principle. Undoubtedly, here the aim of the framers of the constitution was to identify the people with the citizens of the republic—citizens with different political views, social traditions, cultures, and history. The plurality of civic society is here raised up over a unifying national principle. It replaces the ethnic and national criteria of political sovereignty and, it seems, assumes an important symbolic function in the overall development of postcommunist countries. Thus, in these and other constitutional texts, the ethical revolutionary demands of pluralism and diversity found formal legal expression.
In addition to these purely legal outcomes of the legal and constitutional transformation after 1989, one can trace another, for legal positivists more suspicious, strategy—the strategy of anchoring natural rights and ethical discourse in the legal language of the constitution and the Document of Fundamental Rights and Freedoms. In its preamble, the latter speaks expressly of the inalienable “natural rights of man.” The reference to the natural rights of man in Article 85 of the constitution of the Czech Republic, however, is much more serious. According to this article, a judge at the constitutional court of the Czech Republic swears to be guided by these rights in his or her decision making.
Here the framers of the constitution acted on their firm conviction and experience that not every law was a law and not every right a right. It turned out that it was not enough to set out the formal features of the law. Rather, it was much more important to tie legal normativity to the normativity of liberal-democratic political morality. It was as if in certain texts the Czech framers of the constitution wanted to codify the fiction of the right law, which legitimizes the system of positive law in liberal-democratic societies.
II / Postcommunism as a Process of Remodernization
The entire process of transformation has to be understood as a process of modernization. This is a seeming paradox because Czech society and other postcommunist countries seemed to be rebuilding institutions that had previously existed and functioned more or less successfully in their earlier history.
After an interruption that lasted half a century (1938–1989), Czech society returned to its liberal-democratic constitutionality, market economy, and civic traditions. This could not, of course, really be a return, but rather a struggle to reconstruct something of which the present generation, with the exception of its oldest members, has no direct experience. Thus, it is better to speak of a process of remodernization in which the institutional requirements for liberal market companies and a democratic legal state were met.
Postcommunist societies, in the immediate postrevolutionary phase, typically lacked not only democratic discourse but also free political discourse as such. The totalitarian system excluded any kind of political discussion that did not have a ritual character and was not controlled by the central authority. Postrevolutionary development, by contrast, was in later phases necessarily marked by an excess of political vocabulary. In their attempt to understand and define the newly emerging social situation, both citizens and the newly arising institutions of the liberal-democratic system produced this surplus.
For several reasons, totalitarianism means the end of politics in the sense of free public exchange of views and the clash of diverse interests. The first reason is that in such a system the private-public opposition vanishes and with it clear borders demarcating political power. Totalitarian power knows no borders and expands according to its momentary needs and strategic interests.
The second reason is that the hitherto sovereign political institutions of the modern state are, in totalitarianism, subordinate to the sovereign power of the party.13 Instead of a state power organized according to the operation of various political outlooks and the balance of political forces, the state in a totalitarian society is only one of many organizations that are completely subordinate to the power center of the party. Party functions are more important than state functions; party instructions are more important than laws and court decisions.
Finally, the third reason is the exclusion of all political programs and ideologies that are not defined by the party. All opinions that have not been approved by the party ideological center are labeled extremist. This leads to exclusion and ceaseless struggle against “deviations” within the party itself.
Clearly, in totalitarian systems there is no politics in the senses of a public space because in such situations the state is a source of uncertainty and even danger for the citizens. The party usurps the sovereignty of the state. It controls and defines how political communication will occur and what the exclusive ideological reflection of politics will be. Paradoxically, politics ends where everything is supposed to be subordinate to an exclusive political vocabulary.
Postcommunist societies find themselves in a state which could be described as the revival of politics. The main features of the entire postrevolutionary transformation are the diffusion of the absolute power of the totalitarian party to the classical constitutional model of the division of state power; the specification of the precise regulations and borders of this power; and the revival of a political discourse in which extremism is not defined in terms of difference from an exclusive ideology, but rather in terms of the violence and intolerance in its program.
Transformation or reconstruction, as traditionally defined, includes the construction of liberal-democratic institutions and a market economy, which involves many changes in the spheres of private and public law. Transformation also includes a broader reflection on this constructive effort. Society and its various institutions are in communication, reflecting the process of their own transformation, trying to describe it and thus retrospectively influence it.
As has been mentioned above, on a political level this transformation manifests itself in a surplus of political vocabulary. In reality, this is none other than a manifestation of the heightened reflexivity of the citizens and political institutions regarding the processes of social change. The rigid and centrally controlled communications of the totalitarian system gave way to an enormous surplus of political vocabulary. Often it seems as if every social process in this transformation has to have a political significance.
Societies that are going through this transformation typically try to communicate about all problems in such a way as to define their meaning and political context. Postcommunist societies abandoned social communication according to which meaning was dictated hierarchically from the party center. But they have not yet matured to a state in which politics is but one of many means of social communication. The importance that is attributed to political institutions and their transformation corresponds to the feeling of uncertainty that accompanies this kind of change, and the related attempt to find unambiguous political meaning.
In the process of modernization of Czech society, the constitutional court, as one of these institutions, not only applies new constitutional norms in its decisions but also tries to define and limit the newly emerging political regime itself. The rulings of the constitutional court have to be seen as autonomous, political-moral, “legislative” attempts to create a map of liberal-democratic politics in postcommunist Czech society.
In such rulings, a moralist and political vocabulary is a kind of given. But in contrast to constitutional courts in Western systems of the legal state, one is surprised by the intensity and urgency with which the Czech constitutional court speaks about democratic legitimacy and natural rights. Given its need for legitimacy, it is surprising that the court attacks a formal kind of legality with which it shares inherent similarities.
Against the backdrop of the postrevolutionary functions of the Czech constitutional court, this chapter will consider the thesis that the modernization process of postrevolutionary transformations carries with it a polarity in the functioning of the constitutional judiciary. In well-established liberal-democratic legal states, constitutional courts use moral and political arguments as accessories to the principle of formal legality. In Czech postrevolutionary society, by contrast, the court acts as a fundamental critic of the principle of formal legality in order to define and shape, in legislature, the space of democratic politics and morality. This political hypertrophy of the constitutional judiciary is typical of a period in which the newly created legal system does not yet function as an autonomous system, although it is no longer completely subordinate to a party-political system, as in a totalitarian society.
1 / Cf., for example, Gerhard Casper, “European Convergence,” The University of Chicago Law Review 58 (1991), p. 442.
2 / Andrew Arato, “Dilemmas Arising From the Power to Create Constitutions in Eastern Europe,” Cardozo Law Review 3–4 (January 1993), p. 674.
3 / Decision no. 11, 1992 (III.5.) AB of the constitutional court of Hungary.
4 / These changes occurred in 1993 and later in 1997.
5 / Mark F. Brzezinski, Leszek Garlicki, “Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?,” Stanford Journal of International Law 31 (1995), p. 32.
6 / The ruling of the constitutional tribunal S 6/91, on September 25, 1991.
7 / Listina základních práv a svobod (Document of Fundamental Rights and Freedoms), passed as a constitutional law of the Federal Assembly of the Czechoslovak Federal Republic no. 23/91 Coll.
8 / Antonín Máša, “Podivní ptáci,” National Theater print, Prague, 1996.
9 / Cf. Jon Elster, “Constitutionalism in Eastern Europe: An Introduction,” The University of Chicago Law Review 58 (1991), p. 462–463.
10 / Cf., for example, Neil MacCormick, Legal Reasoning and Legal Theory, Clarendon Press, Oxford 1978.
11 / Cf., for example, Jiří Pelikán, The Czechoslovak Political Trials 1950–54, Stanford University Press, Stanford 1971.
12 / Viktor Knapp, Předmět a systém československého socialistického práva občanského, NČSAV, Prague 1959, p. 29.
13 / Among legal philosophers and theorists, the German representative of critical jurisprudence and the Frankfurt School Franz Neumann has treated the subject of totalitarian authority. Neumann considers the defining feature of totalitarian dictatorship to be a political party with a monopoly on power. Other features of totalitarian dictatorship are derived from this party—total control of society and terror. Cf. Franz Neumann, The Democratic and the Authoritarian State, The Free Press, New York 1964, p. 244–245.
14 / Jiří Přibáň, “The Constitutional Court of the Czech Republic and the Problem of the Sovereignty of the Law,” Human Rights in Eastern Europe, ed. Istvan Pogany, Edward Elgar Publishing, Aldershot 1995, p. 135–148.
Jiří Přibáň, “Postcommunist Legitimations and Constitutional Justice,” Dissidents of Law, Ashgate Publishing, Dartmouth 2002, p. 88–119.